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Cooper v. Haas

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

February 3, 2017

MICHAEL ALLEN COOPER, Petitioner,
v.
RANDALL HAAS, [1] Respondent.

          OPINION AND ORDER DENYING PETITIONER'S MOTION FOR A STAY [8], DENYING THE PETITION FOR WRIT OF HABEAS CORPUS [1], DENYING A CERTIFICATE OF APPEALABILITY, GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL, AND DIRECTING THE CLERK OF COURT TO AMEND THE CAPTION

          DENISE PAGE HOOD CHIEF JUDGE.

         Petitioner Michael Allen Cooper (“Petitioner”) has filed a pro se habeas corpus petition under 28 U.S.C. § 2254 and a motion to hold the habeas petition in abeyance while he pursues state remedies. The habeas petition challenges Petitioner's convictions for criminal sexual conduct (CSC) on grounds that: (1) the trial court failed to give a specific jury instruction on unanimity; (2) the prosecutor committed misconduct, and defense counsel failed to object; and (3) the trial court erred when departing from the sentencing guidelines. Respondent Randall Haas (“Respondent”) argues in an answer to the habeas petition that Petitioner's claims are partially unexhausted, waived, procedurally defaulted, not cognizable on habeas review, or meritless.

         Having reviewed the pleadings and record, the Court concludes that Petitioner's exhausted and unexhausted claims lack merit. The Court therefore declines to grant a stay and will deny the habeas petition.

         I. Background

         Petitioner was charged in Oakland County, Michigan with five counts of CSC. The charges arose from allegations that Petitioner sexually abused two of his young nephews during the years 2001 and 2006. Counts one and two charged Petitioner with first-degree CSC (sexual penetration) involving the older nephew (“the victim”), and counts three and four charged Petitioner with second-degree CSC (sexual contact) with the victim. The prosecutor proceeded on alternative theories. She maintained that Petitioner was guilty of the first four charges because the victim was under the age of thirteen at the time, see Mich. Comp. Laws § 750.520b(1)(a), or because the victim was thirteen, fourteen, or fifteen years of age at the time and Petitioner was related to the victim, see Mich. Comp. Laws § 750.520b(1)(b)(ii). Count five charged Petitioner with second-degree CSC involving the victim's brother who was under the age of thirteen at the time of the crime against him.

         The primary evidence at trial came from the victim who was nine to fourteen years old when the abuse occurred. He was nineteen years old at trial. He estimated that Petitioner engaged in sexual activity with him approximately one hundred times. The sexual activity included masturbation, sexual contact, oral penetration, and attempted anal penetration. During the years in question, Petitioner would buy him alcohol, cigarettes, and expensive items even though Petitioner's wife often lacked gas money.

         In 2011, when he was older, he confronted Petitioner about Petitioner's adopted son smoking a substance called K2 with the victim's younger brother at Petitioner's home. He informed Petitioner that he intended to take the matter to a higher authority. He then left Petitioner's home and went to his father's home. Petitioner came over and said something like, “Watch out, my family's Sicilian.” He (the victim) then filed a police report about Petitioner's threat because he was afraid of Petitioner. He subsequently informed his aunt of Petitioner's abusive behavior toward him because he feared that Petitioner would abuse his younger brother in the same way that Petitioner had abused him. He asked his aunt to tell his mother what he had said. He later disclosed the abuse to his mother and then went to the police department and reported what Petitioner had done to him over the years. He denied asking a friend to lie and say that Petitioner had molested the friend, too.

         One of the victim's aunts testified that, in September of 2011, the victim provided her with disturbing information about sexual activity between Petitioner and the victim. She relayed the information to the victim's mother.

         The victim's mother testified that she spoke with the victim and that the victim informed her about sexual activity that had occurred between Petitioner and him. At the mother's suggestion, the victim reported the incident to the police. The mother subsequently spoke with her younger son, who stated that Petitioner also had engaged in sexual activity with him. Reflecting back, she thought that she should have recognized signs that something was wrong. The victim, for example, would be moody when he came home from Petitioner's home, and he would pick his feet and hands to the extent that his sores had to be lanced to allow fluid to drain from them.

         The victim's father testified that the victim had a close relationship with Petitioner from the age of eight or nine until he was fourteen or fifteen years old. Initially, he allowed the victim to work for Petitioner in Petitioner's lawn business. He later put a stop to that because the amount of time that Petitioner would spend with the victim and the number of times he would come to the home and pick up the victim became excessive. Petitioner gave the victim large amounts of money and expensive gifts even though Petitioner could not pay his gas bill to heat his home.

         One of the victim's cousins testified that, when the victim was twelve or thirteen years old, he talked about how much he hated Petitioner. During the same time period, the victim began to pick the skin off his hands.

         Another cousin testified that Petitioner would furnish the victim, the victim's cousins, and other boys with alcohol and cigarettes at his home. One time, after the dog defecated on the floor, Petitioner removed the dog from the house and shot the dog. Sometimes Petitioner and the victim would argue and the victim would get upset and cry or pick his hands. Other times Petitioner would engage in inappropriate sexual activity in the boys' presence.

         The victim's younger brother was sixteen years old at trial. He testified that, on one occasion when he was ten to twelve years old, Petitioner masturbated in his presence. The next morning he was attempting to make breakfast when Petitioner approached him and masturbated on the boy's lower body. Petitioner told him that what happened there, stayed there. The boy did not disclose the incident to anyone until a few months before trial when his mother asked him whether anything had happened between Petitioner and him.

         The victim's former girlfriend testified that she was present when the victim disclosed the sexual abuse to his mother in September of 2011. The victim was hyperventilating, crying, and vomiting as he tried to explain what had happened between Petitioner and him.

         Petitioner did not testify, but three witnesses testified on his behalf. One witness testified that Petitioner did not start his lawn business until 2004. Another witness testified that the victim was a friend of his and that the victim had asked him in October of 2011 to lie and say that Petitioner had sexually touched and molested him.

         A third witness testified that Petitioner was his step-dad and that, in August of 2011, the victim took some scrap metal from the witness's home without Petitioner's permission. The following month, the victim came over to Petitioner's home and argued with Petitioner about Petitioner's adopted son giving K2 to the victim's younger brother. Before the victim left the home, he said, “I'll get you, you'll see.”

         Petitioner's defense was that there was no credible evidence that Petitioner was guilty of the crimes with which he was charged. Defense counsel maintained that the victim was a thief and that both the victim and his younger brother were liars.

         On August 20, 2012, the jury found Petitioner guilty of the four charges of CSC involving the victim. These included: two counts of first-degree CSC and two counts of second-degree CSC. The jury acquitted Petitioner of the additional count of second-degree CSC involving the victim's younger brother. On September 28, 2012, the trial court sentenced Petitioner to prison for twenty-five to sixty years for the first-degree CSC convictions and to a concurrent term of four to fifteen years for the second-degree CSC convictions.

         On appeal from his convictions, Petitioner argued that: (1) the prosecutor's theories of guilt, as presented to the jury, allowed for a less-than-unanimous verdict; (2) the prosecutor's improper argument deprived him of a fair trial and due process, and trial counsel was ineffective was failing to object; and (3) the trial court's upward departure from the sentencing guidelines necessitated reversal and re-sentencing. The Michigan Court of Appeals rejected each one of these claims and affirmed Petitioner's convictions in an unpublished, per curiam opinion. See People v. Cooper, No. 313562 (Mich. Ct. App. Feb. 25, 2014).

         Petitioner raised the same claims in the Michigan Supreme Court. He also asked the state supreme court to consider the United States Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), which was decided while Petitioner's case was pending in the Michigan Court of Appeals. The Michigan Supreme Court initially held Petitioner's claim in abeyance, pending a decision in People v. Lockridge, Docket No. 149073. See People v. Cooper, 849 N.W.2d 355 (Mich. 2014). Following its decision in People v. Lockridge, 498 Mich. 358; 870 N.W.2d 502 (2015), cert. denied sub nom. Michigan v. Lockridge, 136 S.Ct. 590 (2015), [2] the Michigan Supreme Court denied Petitioner's application for leave to appeal because it was not persuaded to review the questions presented to it. See People v. Cooper, 498 Mich. 904; 870 N.W.2d 578 (2015). On February 2, 2016, the Michigan Supreme Court denied Petitioner's motion for reconsideration. See People v. Cooper, 499 Mich. 858; 873 N.W.2d 553 (2016).

         On February 12, 2016, Petitioner filed his habeas corpus petition. On April 22, 2016, Respondent filed his answer to the habeas petition, and on May 19, 2016, Petitioner moved for a stay of this case.

         II. The Motion for a Stay

         Petitioner seeks a stay so that he can return to state court and exhaust state remedies for a new claim about his former appellate attorney. Petitioner contends that appellate counsel was ineffective for failing to raise a claim under Alleyne and for failing to include an argument about trial counsel in his statement of the first issue in the Michigan Court of Appeals.

         A district court may stay a case in “limited circumstances, ” such as when “the petitioner had good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and there is no indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 277-78 (2005). Petitioner, however, has not shown good cause for failing to exhaust state remedies for all his claims before he filed his habeas petition, [3] and his unexhausted claim about appellate counsel is meritless because, as explained more fully below, the underlying claims regarding trial counsel and Alleyne lack merit. “[B]y definition, appellate counsel cannot be ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). The Court therefore denies Petitioner's motion for a stay (document no. 8) and will proceed to address Petitioner's current claims, using the following standard of review.

         III. Standard of Review

         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(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.

28 U.S.C. § 2254(d).

Under the “contrary to” clause [of § 2254(d)(1)], a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts. Under the “unreasonable application” clause [of § 2254(d)(1)], a federal habeas court may grant the writ 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.

Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., opinion of the Court for Part II). “[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411.

         “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “A state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         IV. Discussion

         A. The Jury Instructions

         Petitioner alleges that the trial court's jury instructions on counts one through four permitted the jury to find him guilty on less than a unanimous verdict because the court failed to read a specific unanimity instruction to the jury. The trial court did inform the jury that its decision had to be unanimous, [4] but, according to Petitioner, the trial court should have instructed the jurors that they must decide between the prosecutor's alternative theories and base their verdict on one of the two theories. In other words, Petitioner asserts that the jury should have been instructed to decide whether Petitioner was guilty because he engaged in sexual conduct with someone under thirteen years of age or whether he was guilty because the victim was thirteen, fourteen, or fifteen years of age and related to Petitioner in the fourth degree.[5] Absent a specific unanimity jury instruction on the prosecutor's theories, Petitioner contends it is unclear whether the jury unanimously found that the prosecution proved every fact necessary to constitute the crimes with which he was charged.

         1. Waiver and Lack of Merit

         The Michigan Court of Appeals determined on direct appeal that Petitioner waived review of his claim and thereby extinguished the error. The Court of Appeals also determined that Petitioner was not entitled to a specific unanimity instruction and that the trial court's instructions were legally correct.

         A waiver ordinarily is “the intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464 (1983). Waiver extinguishes appellate review. See United States v. Olano, 507 U.S. 725, 733 (1993) (“Mere forfeiture, as opposed to waiver, does not extinguish an ‘error' . . . . ”). When a defendant knowingly waives an error, his or her challenge is forever foreclosed, and cannot be resurrected on appeal. United States v. Saucedo, 226 F.3d 782, 787 (6th Cir. 2000). These rules apply on habeas corpus review of a state prisoner's conviction. See Morgan v. Lafler, 452 F. App'x 637, 646 n.3 (6th Cir. 2011) (stating that, “[a]though the district court found [the petitioner's] jury-instruction claim forfeited by procedural default for failure to object, the district court could just as easily have rejected the claim on the basis of waiver”).

         Although “ ‘courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and . . . ‘do not presume acquiescence in the loss of fundamental rights, ' ” Johnson, 304 U.S. at 464 (footnotes omitted), the record supports the state appellate court's conclusion that Petitioner waived review of his claim about the jury instructions. His attorney specifically stated that he had no objection to the trial court's jury instructions as read to the jury and that the trial court “did a great job” of instructing the jury. (Trial Tr. Vol. 4, at 211-12, Aug. 17, 2012). By expressing satisfaction with ...


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