United States District Court, E.D. Michigan, Southern Division
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]
Corbett O'Meara United States District Judge
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.
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.
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.
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.
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).
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.
Respondent's Motion to Dismiss
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
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).
Habeas Claim One: The Trial Court Failed to Control the
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.)
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
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.
Habeas Claim Two: Prosecutorial Misconduct
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.)
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 ...