United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
A STAY , DENYING THE PETITION FOR WRIT OF HABEAS CORPUS
, DENYING A CERTIFICATE OF APPEALABILITY, GRANTING LEAVE
TO PROCEED IN FORMA PAUPERIS ON APPEAL, AND DIRECTING THE
CLERK OF COURT TO AMEND THE CAPTION
PAGE HOOD CHIEF JUDGE.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.”
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
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.
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).
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),  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).
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.
The Motion for a Stay
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.
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,  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.
Standard of Review
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
(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;
(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
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
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.
The Jury Instructions
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,  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. 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.
Waiver and Lack of Merit
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
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”).
“ ‘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 ...