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Payne v. Washington

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

March 1, 2017

SCOTT GORDON PAYNE, Petitioner,
v.
HEIDI WASHINGTON, Respondent.

          OPINION

          Paul L. Maloney United States District Judge

         This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was charged in the Kent County Circuit Court in five separate cases alleging criminal sexual conduct involving different victims. The cases were consolidated for trial in 2007. After a jury trial, Petitioner was convicted of various counts of criminal sexual conduct in Case No. 06-011875-FC (victim Bryant), Case No. 06-012819-FH (victim Carter), Case No. 06-011607-FC (victim Kolk), and Case No. 06-011944-FC (victim Fettig). Petitioner was acquitted in the fifth case. As set forth below, the Michigan Court of Appeals reversed Petitioner's convictions in the Kolk and Fettig cases on Confrontation Clause grounds.

         In the Bryant case, Petitioner was convicted of two counts of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b(1)(e) (Count 1) and Mich. Comp. Laws § 750.520b(1)(f) (Count 2), for which the trial court sentenced him as a third-offense habitual offender, Mich. Comp. Laws § 769.11, to life imprisonment for Count 1 and 40 to 60 years in prison for Count 2. In the Carter case, Petitioner was convicted of third-degree criminal sexual conduct (CSC III), Mich. Comp. Laws § 750.520d(1)(b), for which the trial court sentenced him as a fourth-offense habitual offender, Mich. Comp. Laws § 769.12, to 20 to 40 years in prison.

         Petitioner raised two grounds for relief in his original petition (ECF No. 1) and was subsequently granted leave to amend to raise a third claim (6/10/13 Mem. Op. and Ord., ECF Nos. 55-56), as follows:

I. Petitioner's right to the presumption of innocence and a fair trial were violated when, during the first two days of trial, Petitioner faced the jury with a long, wild beard, wearing leg irons and surrounded by armed deputies.
II. Petitioner's Sixth Amendment right to the effective assistance of counsel was violated when trial counsel: (1) refused to meet with Petitioner before trial; (2) failed to secure Petitioner's presence at a single pre-trial hearing; (3) failed to obtain independent testing of the available DNA evidence; (4) failed to prevent Petitioner from appearing before the jury with a long, wild beard and leg irons; (5) failed to make an opening statement; and (6) elicited improper testimony on cross-examination of two prosecutorial witnesses.
III. The introduction of DNA evidence in violation of the Confrontation Clause in two consolidated cases requires reversal of the judgment in the other two cases.

         Respondent filed an answer (ECF No. 19) to the original petition and a supplemental answer to Petitioner's third ground for relief (ECF No. 57). Petitioner filed a reply (ECF No. 44) and a supplemental reply (ECF No. 62), respectively. Upon review and applying the AEDPA standards, the Court finds that the petition should be denied for failure to raise a meritorious federal claim.

         Factual Allegations & Procedural History

         I. Trial Court Proceedings

         Petitioner was tried before a jury beginning on May 21, 2007 and ending on June 1, 2007.[1]The following evidence was presented to the jury:

         A. Kolk Case

          Cynthia (Eerdmans) Kolk, testified that she lived in the City of Wyoming on June 20, 1989. (Trial Tr. III(A), 92-93.) Around 11:30 p.m. that evening, Kolk walked from her home to the grocery store. (Id. at 95-96.) When she left, Kolk noticed a man walking on the sidewalk in front of her house. (Id. at 96.) As she returned from the store by the same route, the same man she had seen earlier on the sidewalk grabbed her, dragged her under the bushes, forced her on her stomach, and sexually assaulted her. (Id. at 96-97.) The man was holding something to her back that felt like a knife and threatened to kill her. (Id. at 96-97, 99-100.) The man attempted to penetrate her with his penis, although she was not certain if he had a full erection. (Id. at 97-98.) He also penetrated her with his fingers. (Id.) When the man was finished, he told Kolk to stay down for a few minutes or he would kill her. (Id. at 99.) He went through her purse and took some cash before leaving. (Id.) Kolk called the police and was transported to the hospital for a rape exam. (Id. at 100.) Kolk was unable to provide information for a composite drawing of her attacker because she did not get a close enough look at him. (Id. at 101.)

         Sergeant Daniel Bursma of the Wyoming Police Department testified that he was dispatched at about 1:00 a.m. on June 20, 1989, to investigate the sexual assault reported by Cindy (Eardmans) Kolk. (Trial Tr. IV, 52.) Kolk showed Bursma the location where the assault occurred, which was in a landscaped area near a parking lot across the street from her home. (Id. at 53-55.) Bursma took Kolk to Butterworth Hospital for a rape examination. He collected the clothing she was wearing and the rape kit. (Id. at 57.) Kolk's glasses were knocked off and she was face-down during the assault so she was unable to provide a description of the assailant for purposes of preparing a composite sketch. (Id. at 59-60.)

         B. Fettig Case

         Dorris Inman testified that her daughter, Robin (Thompson) Fettig, was unable to testify at trial because she lived in Arizona, where her husband was stationed in the army. (Trial Tr. III(A), 100-102.) Because of his job, Fettig's husband could not care for their children in her absence. (Id.) Inman testified that Fettig attended Jackson Middle School on May 25, 1989. (Id. at 103.) Fettig was late coming home from school that day. Inman eventually received a phone call from Fettig, who was at a friend's house, asking Inman to pick her up. (Id. at 104.) When Inman picked her up, she could tell something was wrong. Fettig was dirty and had grass and twigs in her hair. (Id.) Fettig initially gave Inman an explanation for her condition that Inman did not believe. (Id. at 105.) After they got home, Inman continued to ask Fettig what had happened. Fettig, who was in the bathtub, broke down crying. (Id. at 106-07.) Based upon what her daughter told her, Inman called the police and they took her to the hospital where she received a rape exam. (Id. at 144.) The police retained the clothing that she was wearing at the time of the attack. (Id. at 145.) Fettig provided information to the police for a composite drawing. (Id.)

         Paula Wiersma testified that she was fourteen-years-old in 1989. (Trial Tr. IV, 13.) Robin (Thompson) Fettig was her friend and classmate at that time. Wiersma and Fettig often walked home from school together through Jackson Park. (Id. at 13.) On May 25, 1989, the girls did not walk home together. Wiersma was in a party store across the street from her house when Fettig came in. Fettig was crying, her hair and clothing were disheveled and dirty, and she was not wearing shoes. (Id. at 14-15.) Wiersma took Fettig back to Wiersma's house and helped Fettig clean up a bit before she went home. (Id. at 15-16.)

         Kurt Robinson testified that he was employed as a Police Officer for the City of Wyoming in 1989. (Trial Tr. VI, 14.) On May 25, 1989, Robinson was dispatched to Robin (Thompson) Fettig's residence concerning a reported sexual assault. (Id. at 17-18.) Based upon his interview, Robinson identified a crime scene that extended from the Jackson Park Recreational Field to a church parking lot. (Id. at 18.) Robinson collected the clothing the victim was wearing at the time of the assault as evidence. (Id. at 20.) He also collected the victim's bra from Paula Wiersma's residence. (Id. at 21.) Robinson accompanied Fettig to the hospital for a rape examination and collected the rape kit as evidence. (Id. at 21-22.) Fettig worked with Officer George Davis to make a composite sketch of the assailant. (Id. at 23.) All of the evidence held by the Wyoming Police Department in the case had been returned or was destroyed in 1993, except for the DNA extract, which was destroyed in 2005. (Id. at 25-29.)

         C. Bryant Case

          Judith Bryant testified that she was forty-four-years-old in 1989. On August 6, 1989, she went to visit her stepfather in Wyoming, Michigan. (Trial Tr. IV, 17-19.) Bryant left to walk home at about 11:30 p.m. (Id. at 20.) As Bryant was crossing a baseball field next to her stepfather's house, a man asked her for a light. (Id. at 20-22.) Bryant initially declined, but after he asked again, she turned around to light his cigarette. As she approached him, the man grabbed her. (Id. at 22.) When Bryant started fighting, the man punched her in the face with his fists, shook her head and choked her. He covered her face with his hand so that she had trouble breathing and kept telling her that she was going to die. (Id.) The man pulled her pants down to her ankles, pushed up her shirt and bra and vaginally penetrated her twice. He continued to tell her that she was going to die. (Id. at 24.) He used Bryant's shoe laces to tie up her hands and feet, held a knife to her throat and forced her to perform oral sex on him. (Id. at 25-26.) When he was finished, the man shoved a cigarette in her mouth and walked away. (Id. at 27.) Bryant freed herself from the shoelaces and ran back to her stepfather's house for help. (Id. at 28.) From there, she went to Butterworth Hospital and underwent a rape examination. (Id. at 29-30.) Bryant was uncertain what clothing she wore to the hospital, but any semen found on the panties she was wearing at the hospital was from her attacker. (Id. at 29-36.) Bryant did not see her attacker again until the preliminary examination in 2006. (Id. at 30.) She was asked to draw a composite of the assailant after the incident, but was not completely satisfied with how it turned out. (Id. at 30-31.) Bryant identified Petitioner at trial as the man who attacked her. (Id. at 33-34.) She disputed telling defense counsel at the preliminary examination that she was unable to identify Petitioner due to the passage of time. (Id. at 33-35.)

         Doctor Steven Holt and Nurse Ann Dolphin testified that they performed the rape examination of Judith Bryant at Butterworth hospital. (Trial Tr. IV, 37-38, 42.) They collected evidence from the victim, including vaginal swabs. (Id.) They also collected the clothing the victim was wearing and the shoe laces that had been used to tie her hands and wrists. (Id.) The items were sealed in an evidence kit until they were picked up by a police officer. (Id. at 39, 42.) Officer Douglas Weggener of the Kentwood Police Department testified that he picked up the rape kit and secured it at the Kentwood Police Department. (Trial Tr. IV, 6-8.)

         John Johnson testified that he lived with Judith Bryant's stepfather on August 6, 1989. (Trial Tr. IV, 47-48.) Johnson testified that Bryant walked over for a visit around 9:00 or 9:30 p.m. that evening and left around 11:30 p.m. to walk home. (Id. at 48.) About forty-five minutes later, Johnson heard banging on the door. It was Bryant, who had been badly beaten and said that someone was after her. (Id. at 49.) Johnson could not recall exactly what Bryant was wearing after the attack, but he had to give her some clothing to wear before he took her to Butterworth Hospital. (Id. at 49-50.)

         Detective Larry Kerstetter testified that he was a detective for the Kentwood Police Department in 1989. (Trial Tr. III(B), 5.) Kerstetter was called to the hospital during the early morning hours of August 6, 1989, to meet with an assault victim, Judith Bryant. (Id. at 6.) Bryant told Kerstetter that she was walking through a park, when she was physically and sexually assaulted. Kerstetter could observe numerous cuts and bruises, as well and swelling on Bryant's face. (Id. at 6-9.) Bryant also had abrasions on her wrists where they had been tied with shoelaces, and still had a shoelace on one of her wrists when Kerstetter arrived. (Id. at 8-9.) Based upon the information provided by Bryant, Kerstetter located the crime scene in Kentwood Veteran's Park. Kerstetter collected several items off the ground, including a pack of cigarettes and Bryant's shoes. (Id. at 13-16.) Kerstetter was never able to locate a suspect in the case. (Id. at 16.) Kerstetter was not certain what testing, if any, was conducted with regard to the evidence that was collected in the case. (Id. at 17-22.)

         Willard Obenchain testified that he had been an evidence technician for the Kentwood Police Department for 25 years. (Trial Tr. III(B), 27.) On August 7, 1989, Obenchain took all of the evidence collected by Detective Kerstetter to the State Police forensic laboratory in Grand Rapids. (Id. at 28; Trial Tr. VI, 7-8.) Obenchain identified the items contained in the bag of evidence, which included a knife. (Tr. VI, 8-11.) Obenchain also worked with Bryant to create a composite sketch of the person who assaulted her. (Trial Tr. III(B), 29-31.)

         James Pierson, the laboratory director of the Michigan State Police crime lab in Grand Rapids, testified as an expert in the field of fingerprint analysis. (Trial Tr. III(B), 38.) In 2005, Pierson was asked to make some comparisons on some latent fingerprints that had been received in Bryant's case in 1989. (Id. at 40.) The examiner who first received the prints in 1989 had since retired. (Id.) That examiner was able to obtain identifiable fingerprints from two fingers on the cellophane of an open pack of cigarettes that was among the items submitted for testing. (Id. at 42.) Those prints were kept on file for future use by other examiners. (Id.) Pierson compared the fingerprints taken from the cigarette pack to known fingerprints taken from Petitioner and concluded that the fingerprints were not Petitioner's. (Id. at 47.) Another examiner, Shawn Baker, compared the prints from the cigarette pack to fingerprints taken from the victim and determined that the fingerprints found on the cigarette pack were not Bryant's. (Id. at 48; 62-65.)

         Kevin Street of the Michigan State Police crime lab in Grand Rapids testified as an expert in the field of serology. (Tr. V, 62-63.) In 1989, Street tested vaginal swabs and smears related to the Judith Bryant case. Those tests indicated the presence of semen. (Id. at 64.) Street also found seminal stains on the victim's jeans and panties. (Id. at 65.) Street also conducted serological testing on vaginal swabs and smears in the Cindy (Eardmans) Kolk case, which also revealed the presence of sperm cells. (Id. at 65-66.) He also found sperm cells on the victim's jeans. (Id. at 66.) The laboratory was not conducting DNA analysis that time. (Id.)

          D. Carter Case

          Shakira Carter's preliminary examination testimony from December 21, 2006, was played for the jury. Carter testified that on May 15, 2004, she was working as a prostitute in the City of Grand Rapids. (Trial Tr. III(B), 53.) A man Carter identified as Petitioner, picked her up at the corner of Wealthy and Division. (Id.) He was driving an older model dark blue Blazer. (Id. at 59, 62.) Carter told Petitioner that her fee was “$40 and up, ” and he responded by telling her that he had the money and to hurry up and get in the car. (Id. at 54.) Petitioner drove her to a location under a bridge on Stevens Street. After he turned off the car, he began choking her and ordered her to empty her pockets. (Id.) Petitioner then ordered her to pull down her pants and penetrated her vagina with his penis. (Id. at 54-56.) After that, Petitioner attempted to put his penis in her mouth, but only touched her lips. (Id. at 56, 58.) Petitioner pushed Carter out of the vehicle and sped away. (Id. at 59, 68.) Carter climbed some fences and eventually was able to get help from an ambulance. (Id. at 59.) She was very afraid when the incident occurred and reported the sexual assault to police the same night. (Id. at 56-58.) Carter went to the YWCA for a rape examination, which included a vaginal swab. (Id. at 65.) Carter identified Petitioner as the man who assaulted her. (Id. at 60-61.) Nurse Margaret Dayton testified as an expert in the field of evidence collection and as a nurse examiner in the field of sexual assault. (Trial Tr. IV, 70.) Dayton met Carter on May 15, 2004, after she reported being sexually assaulted. (Id.) Cater told Dayton that she got into a vehicle with a man who choked her and forced her to engage in sexual acts with him, which included oral and vaginal penetration. (Id. at 71-72.) Dayton performed a rape examination and collected evidence, including vaginal swabs. (Id. at 74.) Dayton also collected the clothing that Carter was wearing at the time of the assault. (Id. at 75.) The rape kit and clothing was collected by Officer Wortz from the Grand Rapids Police Department. (Id. at 74-75.)

         Officer Jeremy Wortz of the Grand Rapids Police Department testified that he was dispatched to meet an ambulance containing a rape victim on May 15, 2004. (Tr. V, 75-76.) The victim, Shakira Carter, told Wortz that she was working as a prostitute. (Id. at 76.) Wortz transported Carter to the YWCA for a forensic examination. Wortz collected the rape kit and clothing collected from the victim and secured the evidence at the police station. (Id. at 76-77.)

         E. Melissa Smith and the investigation leading to Petitioner's identification

         Melissa Smith testified that she was working as a prostitute on Division Street in Grand Rapids on the night of May 26, 2004. (Tr. V, 79.) A man picked her up in a red minivan and drove her to a location off Stevens Street, near the expressway and Hall Street. (Id. at 79, 83.) When they stopped, Smith asked the man for payment. (Id. at 80.) At that point, the man took off his glasses and jumped on top of her. (Id.) The man told her that “[she] can make this the easy way or the hard way, that he would break [her] wrists to get into [her] pants.” (Id. at 81.) Smith was afraid that no one would hear her if she screamed, so she bit the man as hard as she could on his thigh and laid her foot on the horn. (Id. at 81-82, 85-86.) Smith testified that this was the first time in two-and-half years of prostituting that she had bit someone in self-defense. (Id. at 93.) The man got off of her and she jumped out of the van. (Id. at 82.) The man told her that he was sorry and offered to drive her back, but she declined. (Id.) Smith did not immediately report the incident to the police. (Id. at 82-83.) The following night, the same man driving the same van drove past Smith while she was walking on Division. Smith got his license plate number and called the police. (Id. at 83-84.) Smith identified Petitioner as the man who was driving the red van. (Id. at 85.) Smith saw Petitioner again a few months later driving a silver mini van. (Id. at 94-95.) He rolled down his window and said, “You're Melissa, ain't you.” She did not report that incident to police because she was on drugs. (Id. at 94-95.)

         Officer Jonathan Peters of the Grand Rapids Police Department testified that on May 27, 2004, he met with Melissa Smith, who had called to report a sexual assault. (Tr. V, 72-73.) Smith informed Peters that she was working as a prostitute and provided Peters with the assailant's license plate number. (Id. at 73.) Peters provided the license plate number to the detective assigned to investigate the case. (Id. at 74.)

         Officer Robert Cervantes of the Grand Rapids Police Department testified that on May 28, 2004, he and Officer Tim Simons investigated a license plate related to the cases involving Shakira Carter and Melissa Smith. (Trial Tr. IV, 78-79.) They went to an address in Grand Rapids that was associated with the license plate, where they found a Blazer and a red van parked in the driveway. (Id. at 79-82.) The officers also found Petitioner at the address. Petitioner indicated that he was the primary driver of the vehicles parked in the driveway. (Id. at 83.) During the officers' conversation with Petitioner, he denied picking up prostitutes. (Id. at 84.) One of the victims reported biting her attacker on the leg, so Detective Simon asked Petitioner to raise his shorts so they could see his legs. When Petitioner raised his shorts, the officers observed a mark that appeared to be a bite. (Id.) Cervantes called a crime scene technician collect evidence at the scene. (Id.)

         Dean Garrison, a crime scene technician with the Grand Rapids Police Department, testified that he collected evidence from Petitioner's residence on May 28, 2004. (Trial Tr. IV, 86-87.) Garrison lifted latent finger prints from the passenger sides of the Oldsmobile van and Chevy blazer. He also photographed the vehicles and the injury to Petitioner's right thigh. (Id. at 88-90.)

         Grand Rapids Police Detective Matthew Kubiac testified that he took over the investigation of the Smith and Carter cases from Detective Simon in 2005. (Trial Tr. IV, 92-93.) Kubiac explained that they had difficultly locating Carter, so she was arrested on a material witness warrant to ensure her presence at the preliminary examination. (Id. at 95-96.) Carter was unable to appear for trial because she was deceased. (Id.) Kubiac believed that Carter was the victim of a homicide, but did not believe that Petitioner was a suspect in the homicide case. (Id. at 96, 107.) Cater identified a photograph of the Chevy Blazer at the preliminary examination. (Id. at 96-97.) After Kubiac received the Michigan State Police lab report in early February, 2005, he and detectives from Wyoming and Kentwood obtained a warrant to obtain a buccal swab for DNA from Petitioner, who was lodged at the Clinton County Jail. (Id. at 104.)

         Jolinda Hall, Petitioner's sister, identified People's Exhibit No. 26 as a photograph of Petitioner. (Tr. V, 100.) Hall testified that Petitioner moved back to Michigan in 2004, after living out-of-state for several years. (Id. at 102-03.) He lived in Newago for about a month and then moved in with her in April 2004. (Id. at 102.) Deputy Kathleen Butts of the Kent County Sheriff's Department authenticated People's Exhibit No. 26 as a photograph of Petitioner taken on February 18, 1990. (Id. at 105.) On recall, Judith Bryant positively identified the man pictured in People's Exhibit No. 26 as the man who attacked her. (Id. at 125.)

         F. DNA Testing

         Ann Hunt, a forensic scientist at the Michigan State Police crime lab in Grand Rapids, testified as an expert in DNA analysis. (Trial Tr. V, 25.) Hunt testified that in 1989, she received samples for testing related to the Robin (Thompson) Fettig case. (Id. at 29.) The items included a sexual assault evidence kit and a brown bag containing 18 separate items. (Id. at 30.) Hunt tested a vaginal swab that was found to contain seminal fluid. (Id. at 30-31.) She also found sperm cells on a cutting taken from a pair of panties that came from the brown bag. (Id. at 31.)

         In August 2004, Hunt tested evidence taken from Shakira Carter. (Id. at 31.) The vaginal swabs, pubic area swabs and rectal swabs all indicated the presence of seminal fluid. (Id. at 32.) She did not detect the presence of seminal fluid from the oral swab. (Id.) Hunt did additional testing related to the Carter case in September 2004. Hunt was able to identify a male fraction from the sperm cells and found that it was the same unknown male donor in both cases. (Id. at 33-34.) Hunt entered the unknown male fraction into the database and discovered two other cases with the same unknown male donor. (Id. at 34-35.) Hunt did not do the final testing in the Carter case to identify the unknown male. (Id. at 49.) That testing was done by Joel Schultz. (Id. at 50.)

         Hunt testified that she did not conduct the follow-up testing in the Fettig case. (Id. at 36.) Hunt reviewed the analysis that was conducted by Orchid Cellmark, an outside laboratory. (Id. at 36-37.) Hunt reviewed the report for accuracy, made sure there was a proper chain of custody and that the report accurately reflected the result that they obtained. (Id. at 37.) Hunt did not detect any inconsistencies with the controls and determined that the report was reliable under Michigan State Police standards. (Id. at 38-39.)

         Paul Donald of the Michigan State Police crime lab in Grand Rapids testified as an expert in DNA testing, particularly PCR STR testing. (Tr. V, 132.) Donald tested evidence on August 8, 2000, related to the Judith Bryant case and found male DNA on the vaginal swab and pair of panties. (Id. at 133-34, 136.) There was not a suspect in the case at the time he conducted the testing in order to do a comparison. (Id. at 134.) Donald entered the unknown male file into the DNA database for future reference. (Id. at 135-36.) In July of 2005, Donald re-tested the samples in the Bryant case using a kit that analyzed thirteen areas or locations on a persons DNA, as opposed to ten locations under the previous test. (Id. at 136-37.) Defense counsel conducted extensive cross-examination regarding the differences between the preliminary report prepared by Donald and his final report. (Id. at 139-171.)

         Joel Schultz of the Michigan State Police crime lab in Grand Rapids testified as an expert in DNA testing. (Trial Tr. VI, 30-32.) Schultz testified that the DNA testing for the two Wyoming cases (Fetig and Kolk) was outsourced to Orchid Cellmark, while the DNA testing for the Kentwood (Bryant) and Grand Rapids (Carter) cases was conducted in-house at the Grand Rapids lab. (Id. at 33-34, 55-56.) The results from the Wyoming cases came back with unknown male profiles, which were entered into the DNA database. (Id. at 35.) The match of the unknown male profile in all four cases was discovered in late 2004 or early 2005. (Id. at 35-36.) A buccal swab from Petitioner was submitted for testing by Detective Michele Clark in February 2005. (Id. at 36-37; Tr. V, 126-28.) Schultz found that Petitioner's DNA profile matched the evidentiary profiles in all four cases. (Id. at 39-49.) In each case, the probability of another Caucasian male having the same DNA profile was determined to be 1 in 17.2 quintillion. (Id. at 42-49.)

         Alisa Gindlesperger, a contract employee of Orchid Cellmark, testified as an expert in DNA analysis. During the course of her employment with Orchid Cellmark, Gindlesperger conducted DNA analysis and conducted technical review on hundreds of files. (Trial Tr. VII, 4-5.) The Maryland lab where the DNA testing for the Fettig and Kolk cases was conducted was closed in 2005 and transferred to the Orchid Cellmark lab in Dallas. (Id. at 12-16.) Gindlesperger obtained the DNA reports for the Fettig and Kolk cases from the Dallas facility and conducted a technical review. (Id.) Gindlesperger testified regarding the DNA testing that was conducted in those cases and concluded that the tests were performed properly and no outside contamination was introduced. (Id. at 34-36.) Nevertheless, Gindlesperger did not perform the DNA testing and the analysts who conducted the testing no longer worked for the company. (Id. at 28, 36-37.)

         G. Petitioner's Testimony

         Petitioner was 37-years-old at the time of trial. (Trial Tr. VII, 41.) He admitted to having numerous criminal convictions, including receiving and concealing stolen property, larceny and five bank robberies in Florida and Missouri. (Id. at 43.) With regard to Shakira Carter, Petitioner admitted to picking her up on Division during the summer of 2004. (Id. at 44-45.) He testified that he parked by the overpass on Hall Street and had sex with Carter in exchange for money. They also smoked crack together. (Id.) When they were done, Petitioner drove her back to the area where he had picked her up. (Id. at 45.) Petitioner picked her up again a week or two later and parked in the same area. According to Petitioner, they smoked six to eight twenty-dollar rocks of crack and had sex. Petitioner claimed that he initially gave Carter twenty or thirty dollars for sex, but took some of the money out of her pants pocket while they were having sex so that he could buy more crack. (Id. at 46-47.) Carter did not realized the money was missing until he was driving her back. Petitioner told her that he didn't know what happened to the money, but she got angry. Petitioner stopped his truck and told her to get out. When Carter got out, she hit or kicked his truck and he drove away. (Id. at 47.) Petitioner maintained that he never assaulted Carter and that the sex was completely consensual during both encounters. (Id. at 47-48, 52.)

         Petitioner also admitted to picking up Melissa Smith for sex while he was driving his sister's van. (Id. at 49.) He claims that she agreed to given him oral sex for twenty dollars. (Id. at 50.) When he parked by the Hall Street overpass, Smith allegedly took a crack pipe out of her pants and started getting out some crack to smoke. Petitioner was mad because she was going to smoke in the van and grabbed the pipe out of her mouth. (Id.) Smith responded by biting him on the leg. Petitioner pulled her off his leg, kicked her out of the car and drove away. (Id. at 50-51.) Petitioner saw Smith again about three days later when he was driving near the corner of Burton and Division. She was jumping up and down, and pointing at his van, which made him think, “Wow, that's a crazy hooker.” (Id. at 51-52.) Petitioner denied forcing himself upon Smith or assaulting her in any way. (Id. at 52.) Petitioner admitted to living in Grand Rapids at the time the other three women were sexual assaulted, but denied ever having any contact with them. (Id. at 53.) Petitioner believed that the DNA evidence linking him to those cases was wrong. (Id. at 54.) Petitioner was in prison from 1993 until May 2004, when he moved back to Michigan. (Id. at 63.) Petitioner admitted to being a crack addict and to picking up prostitutes “often” while he lived in Grand Rapids. (Id. at 58-59.) He was arrested on bank robbery charges on December 9, 2004. (Id. at 60.)

         At the conclusion of trial, the jury found Petitioner guilty of CSC I in the Kolk case, two counts of CSC I in the Bryant case, and CSC III in the Carter and Fettig cases. (Trial Tr. VIII(B), 11-12.)

         The jury found Petitioner not guilty of assault with intent to commit criminal sexual penetration with regard to Melissa Smith. (Id. at 12.)

         At the sentencing hearing held on August, 7, 2007, the trial court sentenced Petitioner in the Kolk case to life imprisonment for the CSC I conviction. (Sentencing Tr., ECF No. 38, PageID.690.) In the Bryant case, the court sentenced Petitioner as a third habitual offender to life imprisonment for the first count of CSC I and imprisonment of 40 to 60 for the second count of CSC I. (Sentencing Tr., ECF No. 38, PageID.690-691.) The Court sentenced Petitioner in the Fettig case as a third habitual offender to imprisonment of 10 to 30 years for the CSC III conviction. (Id. at 691.) Finally, in the Carter case, the trial court sentenced Petitioner as a fourth-offense habitual offender to imprisonment of 20 to 40 years for the CSC III conviction. (Id.)

         II. Direct Appeal

         Petitioner appealed the judgment of conviction and sentence to the Michigan Court of Appeals. The brief filed by appellate counsel on September 29, 2008, raised four claims of error, including Petitioner's first two grounds for habeas corpus relief. (See Def.-Appellant's Br. on Appeal, ECF No. 40, PageID.728-29.) Petitioner subsequently filed a pro per supplemental brief rasing the following additional claim:

THE TRIAL COURT DENIED MR. PAYNE THE RIGHT TO CONFRONT HIS ACCUSER, ORCHID CELLMARK DNA ANALYSIS BY CHRISTINE BAYER AND ALLOWED A CONTRACTED ANALYST [ALISSA GINDLESPERGER] TO GIVE TESTIMONY FROM A COPY OF THE DNA REPORT THAT IS IN QUESTION. THE CONVICTION SHOULD BE REVERSED.

(See Def.-Appellant's Supplemental Pro Per Br. on Appeal, ECF No. 40, PageID.789.) In an opinion issued on July 28, 2009, the Michigan Court of Appeals found that the laboratory reports in the Kolk and Fettig cases were not properly admitted under the Michigan rules of evidence and that the error was not harmless because the reports were the only evidence that established an essential element of the CSC charges against Defendant in those cases. See People v. Payne, 774 N.W.2d 714, 725-27 (Mich. Ct. App. 2009). The court further concluded that while counsel failed to preserve the Sixth Amendment confrontation claim, the admission of the DNA reports was plain error requiring reversal in those cases. See Payne, 774 N.W.2d at 725-28. The appellate court rejected Petitioner's other assignments of error and affirmed the convictions in the other two cases.

         Petitioner filed an application for leave to appeal in the Michigan Supreme Court, presenting the same five claims raised in the Michigan Court of Appeals, as well as a new claim that given the acquittal in one case and the court of appeals decision overturning two additional consolidated cases, the jury may have found reasonable doubt as to the other two consolidated cases. (See Def.-Appellant's Application for Leave to Appeal, ECF No. 41, PageID.886.) The supreme court denied leave to appeal on May 25, 2010. (See Mich. Ord., ECF No. 27.)

         III. Proceedings in this Court

         Petitioner originally filed a habeas petition in a separate action in September 2010. See Payne v. Michigan, No. 1:10-cv-896 (W.D. Mich.). In that action, the court dismissed the petition without prejudice because it contained some claims that had not been exhausted. (12/07/2010 Op., 1:10-cv-896 ECF No. 7.) Petitioner filed the instant petition three months later on March 30, 2011, raising his first two grounds for habeas corpus relief, which had been exhausted on direct appeal.

         More than a year later, Petitioner moved to amend the petition to add his third ground for relief (ECF No. 49). Respondent opposed the motion on the ground that the proposed new claim was not properly exhausted in the state courts. In a memorandum opinion and order issued on June 10, 2013 (ECF Nos. 55-56), the Court found that while Petitioner's confrontation claim on direct appeal was not a model of clarity, the Michigan Court of Appeals explicitly ruled that the confrontation violations in the Kolk and Fettig cases did not undermine Petitioner's convictions in the Bryant and Carter cases. Because the issue was decided by the court of appeals, the Court determined that the exhaustion requirement was satisfied. Consequently, the Court granted Petitioner's motion to amend to raise the claim that the admission of laboratory tests in violation of the Confrontation Clause in two consolidated cases vitiated the judgment reached by the jury in two other consolidated cases for which Petitioner was found guilty.

         Standard ...


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