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Smith v. Bergh

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

February 9, 2017

EDWIN ANTHONY SMITH, Petitioner,
v.
DAVID BERGH, Respondent.

          ORDER DENYING WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS THE HABEAS PETITION [ECF NO. 6], DENYING PETITIONER'S MOTION FOR A HEARING [ECF NO. 5], AND DENYING PETITIONER'S MOTION TO COMPEL RESPONDENT TO SUBMIT ADDITIONAL MATERIALS [ECF NO. 10]

          John Corbett O'Meara United States District Judge

         This is a pro se habeas corpus case under 28 U.S.C. § 2254. State prisoner Edwin Anthony Smith (“Petitioner”) challenges his Wayne County, Michigan conviction for one count of first-degree criminal sexual conduct. See Mich. Comp. Law § 750.520b(1)(a) (sexual penetration of a person under the age of thirteen). Petitioner is serving a sentence of twenty-five to thirty-eight years in prison. Presently before the Court are Petitioner's motion for an evidentiary hearing, Petitioner's motion to compel respondent David Bergh (“Respondent”) to file additional state-court materials, and Respondent's motion to dismiss the habeas petition on the basis that Petitioner failed to exhaust state remedies for all his claims. For the reasons given below, Respondent's motion to dismiss the habeas petition is denied without prejudice, and Petitioner is ordered to inform the Court whether he wishes to voluntarily dismiss his habeas petition, delete his unexhausted claims from his habeas petition, or have his habeas petition stayed pending exhaustion of additional state remedies. Petitioner's motions for an evidentiary hearing and to compel Respondent to file additional state-court materials are denied.

         I. Background

         Petitioner was charged in Wayne County, Michigan with three counts of criminal sexual conduct. The charges arose from allegations that Petitioner sexually penetrated his pre-teen stepdaughter. The Michigan Court of Appeals summarized the facts as follows:

Defendant was . . . accused of penetrating the victim with two different sexual devices, one described as orange and the other as purple, and then performing cunnilingus on her. The police seized an orange device when they executed a search warrant, but a purple device was never found. During the early stages of the case, the prosecutor stated that the orange device would be submitted to the state police crime laboratory for DNA analysis, but this never occurred. At trial, defense counsel did not challenge the prosecutor's failure to pursue any DNA analysis of the orange device, and instead pursued a defense strategy of attacking the adequacy of the police investigation. Defense counsel vigorously cross-examined the officer-in-charge regarding the absence of any DNA analysis of the orange device and the failure to investigate other potentially exculpatory leads. Defense counsel also advanced the theory that the victim and her grandmother contrived the allegations so that the victim could live with her grandmother, who had a longstanding hostile relationship with her daughter, who was the victim's mother and defendant's wife.

People v. Smith, No. 312021, 2014 WL 4263093, at *1 (Mich. Ct. App. Aug. 28, 2014). On July 17, 2012, a Wayne County Circuit Court jury found Petitioner guilty of one count of first-degree criminal sexual conduct for the charge involving the orange object. The jury acquitted Petitioner of the other two counts of criminal sexual conduct. On July 31, 2012, the trial court sentenced Petitioner to prison for twenty-five to thirty-eight years.

         Petitioner filed a claim of appeal, but then moved to hold the appeal in abeyance until the orange object could be tested for DNA. The Michigan Court of Appeals agreed to hold the appeal in abeyance, see People v. Smith, No. 312021 (Mich. Ct. App. Sept. 18, 2013), and on January 13, 2014, Bode Technology of Lorton, Virginia submitted a forensic case report to Petitioner's appellate attorney. The report stated that the partial DNA profile on one sample was consistent with a mixture of at least two individuals and that the DNA profile obtained from another sample was consistent with a mixture of at least two individuals, including at least one male contributor.

         In a subsequent appellate brief filed through counsel, Petitioner argued that the statute providing for a mandatory sentence of twenty-five years in prison for first-degree CSC committed against a person under the age of thirteen violates the separation-of-powers doctrine by impermissibly infringing on the trial judge's discretion. In a pro se supplemental brief, Petitioner alleged that (1) the trial judge erred and deprived him of a fair trial by failing to control the proceedings at all times and by excluding exculpatory evidence, (2) the prosecution committed perjury to obtain his conviction, and (3) he was denied counsel at a critical state of the proceedings.

         The Michigan Court of Appeals rejected Petitioner's claims and affirmed his convictions. See People v. Smith, No. 312021, 2014 WL 4263093 (Mich. Ct. App. Aug. 28, 2014). Petitioner moved for reconsideration on grounds that the Court of Appeals erroneously stated that the orange device was never submitted to the crime laboratory for DNA analysis and that Petitioner was sentenced as a habitual offender. The Court of Appeals denied reconsideration. See People v. Smith, No. 312021 (Mich. Ct. App. Oct. 13, 2014).

         Petitioner raised the same four issues that he presented to the Michigan Court of Appeals in an application for leave to appeal in the Michigan Supreme Court. On May 28, 2015, the state supreme court denied leave to appeal because it was not persuaded to review the issues. See People v. Smith, 497 Mich. 1028; 863 N.W.2d 316 (2015). On December 27, 2015, Petitioner signed and dated his habeas petition.

         II. Discussion

         A. Respondent's Motion to Dismiss

         Respondent contends that Petitioner failed to exhaust state remedies for all his claims. In the alternative, Respondent seeks to have Petitioner file a more definite statement of his claims. Petitioner maintains that he did exhaust state remedies for his claims.

         The doctrine of exhaustion of state remedies requires state prisoners to present all their claims to the state courts before raising their claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement is satisfied if the prisoner “invok[es] one complete round of the State's established appellate review process, ” including a petition for discretionary review in the state supreme court, “when that review is part of the ordinary appellate review procedure in the State.” O'Sullivan, 526 U.S. at 845, 847. To properly exhaust state remedies, the petitioner must fairly present the factual and legal basis for each of his habeas claims to the state court of appeals and to the state supreme court before raising his claims in federal court. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009).

         1. Habeas Claim One: The Trial Court Failed to Control the Proceedings.

         Petitioner's first ground for relief reads:

Mr. Smith was denied his fundamental Due Process protections to a fair trial as guaranteed under both State and Federal Constitutions, when [the] trial court failed to control the proceedings at all times, especially where exculpatory evidence was excluded at trial due to judicial error.

(Pet. for Writ of Habeas Corpus, ECF No. 1, Pg ID 3.)

         Petitioner raised this claim in his pro se supplemental brief on direct appeal of his conviction, but the basis for his argument was that the trial court failed to ensure that the prosecution fulfilled its promise to have DNA testing completed before trial and allowed the prosecution to try him without the test results. Petitioner also argued that the trial court ignored his inquiry about the crime lab reports at sentencing and allowed defense counsel to abandon him. (Defendant's Pro Per Brief on Appeal, ECF No. 7-21, Pg ID 1471-76.)

         In his habeas petition, Petitioner argues that the trial court:

(a) allowed DNA test results to be excluded;
(b) allowed the prosecutor to breach a court order at trial;
(c) allowed the prosecutor to deceive jurors regarding DNA testing of the orange object;
(d) ignored Petitioner's request to conduct an in camera investigation of a transcript; and
(e) read a jury instruction that contradicted its “special conditions” court order.

(Pet. for Writ of Habeas Corpus, ECF No. 1, Pg ID 3-4; see also Brief in Support of Pet., ECF No. 1, Pg ID 33-38.) To the extent claims 1(a), 1(b), 1(c), and 1(d) assert that the trial court allowed the prosecutor to proceed without the results of the DNA tests and that the trial court ignored Petitioner's request at sentencing to have the court review the transcript of a calendar conference regarding DNA testing, those claims are exhausted. The remaining subclaim - 1(e) - and the allegation that the trial court violated Petitioner's right of confrontation were not raised on appeal and are not exhausted.

         2. Habeas Claim Two: Prosecutorial Misconduct

         Petitioner's second claim reads:

Mr. Smith was denied his constitutional and fundamental due process protections to a fair trial as guaranteed under both State and Federal Constitutions when the prosecution . . . proceeded against Mr. Smith and knowingly committed perjury to obtain a conviction . . . .

(Pet. for Writ of Habeas Corpus, ECF No. 1, Pg ID 4.)

         Petitioner raised this claim on appeal, asserting that the prosecution committed a fraud on the court by violating the State's perjury statute and by duping the jury in the absence of the DNA test results. Petitioner did not explain the manner in which the prosecutor allegedly committed perjury, but he ...


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