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Abela v. Heyns

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

March 1, 2017

DANIEL HEYNS, Respondent.


          THOMAS L. LUDINGTON United States District Judge.

         Petitioner, Lawrence Abela, is currently on parole after serving a sentence of 2½ to 15 years for his Oakland Circuit Court jury trial convictions of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(c), and fourth-degree criminal sexual conduct. Mich. Comp. Laws § 750.520e(1)(c). He has filed this habeas corpus petition pursuant to 28 U.S.C. § 2254.

         Petitioner's application for habeas relief, ECF No. 1, consists of a 205-page maze of fragmented arguments. Petitioner's supplemental amended petition, his reply brief, and its multiple amendments, ECF No. 5 at 14-19, do not add clarity. Petitioner enumerates seventeen claims at one point in his pleading, but the argument headings for those claims are difficult to parse. ECF No. 1 at Page ID 70-77. Petitioner has filed thirteen motions to amend since his habeas petition was filed. Five of those motions have been granted. However, on January 24, 2017, the Court denied Petitioner's six pending motions to amend, explaining that further amendments would only delay resolution of the claims and obscure the legal issues. ECF No. 27. Since that order, Petitioner has filed four “letters” which appear to be attempts to further amend his briefing. ECF Nos. 28, 29, 30, 31. Petitioner has had ample opportunity to fully explain his arguments, and the four letters filed in the past few weeks do not make any new arguments. Because Petitioner's claims are, for the reasons stated below, insufficient to justify habeas relief, his most recent attempts to amend his briefing will not be individually addressed.

         Prisoner pro se pleadings are given the benefit of liberal construction. Erickson v. Pardus, 551 U.S. 89, 94 (2007). There are limits, however, and a federal court is not required to construct legal arguments for a pro se petitioner. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). The Court will therefore interpret the petition to be raising the claims that Petitioner fairly presented to the state courts on direct appeal: (1) Insufficient evidence was presented to support Petitioner's convictions; (2) the prosecutor's expert witnesses were not qualified to offer expert testimony; (3) the trial court erroneously denied Petitioner's motion to adjourn the case to allow Petitioner to obtain substitute counsel; (4) the trial court erroneously denied Petitioner's motion to have the victim undergo a physical and psychological examination; (5) the trial court erred in failing to apply the “tender years” exception to the hearsay rule; (6) the trial court erroneously admitted evidence regarding Petitioner's bad character from the victim's mother; (7) the trial court erred by questioning the victim prior to her testimony; (8) the composition of the jury was unconstitutional; (9) the trial court erred in failing to rule on Petitioner's eve-of-trial pro se discovery motions; (10) the prosecutor committed misconduct; (11) the jury instructions were erroneous; (12) the trial court erroneously allowed the officer in charge to remain in the courtroom during trial; (13) the trial court erroneously excluded evidence that the victim made prior sexual assault accusations; (14) trial counsel provided ineffective assistance; (15) Petitioner was illegally arrested, and there were defects in his arraignment, preliminary examination, and bind-over, divesting the trial court of jurisdiction; (16) cumulative errors rendered Petitioner's trial unfair; and (17) the trial court improperly denied Petitioner's pro se motion for new trial on grounds of untimeliness.[1]

         The petition is denied because none of Petitioner's claims merit relief. Petitioner will also be denied a certificate of appealability and permission to proceed on appeal in forma pauperis.


         This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

Defendant was convicted of engaging in acts of digital penetration and sexual contact with the adult, mentally disabled daughter of his former girlfriend, with whom he lived. The victim's mother ended her relationship with defendant in May 2010, but allowed defendant to continue residing with her and the victim until defendant found a new place to live.
The prosecution presented evidence that the victim's mother became more forceful in her efforts to make defendant leave her apartment. Following an argument at a restaurant on July 8, 2010, the group returned to the victim's mother's apartment and defendant instructed the victim's mother to do some laundry. The victim testified at trial that after returning from dinner with defendant and her mother, defendant pulled her into her mother's bedroom while her mother was downstairs doing the laundry. The victim stated that defendant touched her “who, ” which is another name for her vagina, and her butt, and that defendant put his finger inside her vagina. After defendant left the apartment the next morning, the victim told her mother that defendant had touched her in “wrong places.” The victim also reported defendant's conduct to a certified nursing assistant, Phyllis Armstead, who was assisting the victim with life skills. The victim's mother testified that she instructed defendant to leave her apartment, but delayed making a report to the police for a few days. The defense theory at trial was that the victim's mental disability made her susceptible to suggestibility by her mother and others, and that the victim's mother influenced the victim into accusing defendant of sexual assault because she wanted defendant out of her apartment. Defense counsel presented an expert witness to support this theory.

People v. Abela, No. 307768, 2013 WL 5576155, at *1 (Mich. Ct. App. Oct. 10, 2013).

         Following his conviction and sentence as indicated above, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His retained appellate counsel raised four claims:

I. Was Defendant convicted based on insufficient evidence in violation of his due process rights where the evidence demonstrated that the Complainant was not “mentally incapable” under the statute because she testified that she understood what was happening and did not consent to the sexual acts?
II. Whether the trial court abused its discretion in admitting the testimony of the prosecution expert where his testimony did not satisfy the standards for expert testimony in Michigan, thus violating Mr. Abela's due process rights. Whether trial counsel was ineffective for failing to object to the expert and his testimony.
III. Whether the trial court violated Mr. Abela's due process rights by refusing to grant a reasonable adjournment of trial so that Mr. Abela could retain defense trial counsel of choice.
IV. Was Defendant denied his constitutional right to present a defense and confront the witnesses against him by the trial court's erroneous decisions to deny a psychological examination of the Complainant. Trial counsel was ineffective for failing to request the physical examination.

         After his appellate counsel filed the brief on appeal, Petitioner discharged him. Appellate counsel then successfully moved to withdraw from representing Petitioner on appeal. Petitioner subsequently filed a pro se supplemental brief raising numerous issues as outlined above. The Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished opinion. The opinion addressed all the issues raised in both Petitioner's former counsel's brief on appeal and in Petitioner's pro se brief. Abela, 2013 WL 5576155.

         Petitioner then filed an application for leave to appeal in the Michigan Supreme Court, appearing to seek review of all the claims he raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was “not persuaded that the questions presented should be reviewed.” People v. Abela, 849 N.W.2d 362 (Mich. 2014) (table).


         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was “contrary to” or resulted in an “unreasonable application of” clearly established Supreme Court law.

         “A state court's decision is ‘contrary to' . . . clearly established law if it ‘applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent.'” Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application' prong of the statute permits a federal habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Williams, 529 U.S. at 413).

         “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.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). “Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. . . . As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103 (internal quotation omitted).



         Petitioner's first claim challenges the sufficiency of the evidence presented at trial to sustain his convictions. Petitioner challenges the sufficiency of the evidence regarding whether the victim was “mentally incapable” and therefore unable to consent to sexual conduct. Petitioner also asserts that insufficient evidence was presented to show that a sexual penetration occurred. Both claims lack merit.

         A “daunting, doubly deferential standard of review” applies to a sufficiency-of-the-evidence inquiry on habeas review. Keys v. Booker, 798 F.3d 442, 450 (6th Cir. 2015). First, a reviewing court “must determine whether, viewing the trial testimony and exhibits in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Second, even if the reviewing court concludes that a rational trier of fact could not have found the petitioner guilty beyond a reasonable doubt, it “must still defer to the state appellate court's sufficiency determination as long as it is not unreasonable.” Id.

         With respect to Petitioner's first challenge, under Michigan law a person is “mentally incapable” of consenting to sexual contact if she has “a mental disease or defect that renders [her] temporarily or permanently incapable of appraising the nature of . . . [her] conduct.” Mich. Comp. Laws § 750.520a(I). This element requires an assessment of the person's ability to understand the physical act and to appreciate nonphysical factors, such as the moral quality of the act. People v. Breck, 230 Mich.App. 450, 455 (1998).

         There was substantial evidence presented at trial indicating that the victim was “mentally incapable” of consenting to sexual contact, and therefore the Michigan Court of Appeals rejection of this claim was reasonable. Phyllis Armstead testified that she was employed by the State of Michigan as a certified nursing assistant. ECF No. 13-9 at 120. She received training in dealing with people with special needs. Id. at 121. Armstead worked with the victim, Erika Zelmon, and her family for two and one-half years. Id. at 122. She assisted Erika with things like hygiene and meal preparation, and she would take Erika on goal-oriented outings. Id. These would include such things as taking her to a parking lot and teaching her how to look both ways, teaching her to be aware of her surroundings, and teaching her to wear a seatbelt when riding in a car. Id. at 121-122.

         Ms. Armstead's schedule with Erika was five days a week for four hours a day, and eight to ten hours on Saturdays. Id. at 123. According to Ms. Armstead, Erika was like an eight to ten year-old child. Id. at 124. She was not able to live by herself and she was not able to care for herself. Id. Erika could not count money well, she could not prepare a meal without assistance, and she needed assistance crossing the street. Id. at 126.

         Dr. Jackson Edwin Turner testified that he was employed at Michigan Behavioral Medicine as a staff psychologist. ECF No. 13-10 at 77. One of his duties was to perform psychological assessments on children and adults, as well as individuals with special needs. Id. Dr. Turner performed several hundred psychological assessments, and was certified by the State of Michigan. Id. at 78. Erika was referred to Dr. Turner by her mother and Sgt. Zupic of the Madison Heights Police Department for an evaluation of her mental ability level. Id. at 79. According to Dr. Turner, Erika presented herself in a childlike manner, her vocabulary was limited, and the concepts that she used were less than what would be expected of a 22-year-old woman. Id. at 81. The result of her Wechsler Adult Intelligence Scale test was a 53, which meant that she was significantly impaired. Id. at 82. Dr. Turner opined that her ability to understand the consequences of a sexual act was significantly impaired. Id. at 83. She was operating on the level of an eleven or twelve-year-old child. Id. Her ability to understand social meanings and social relationships was impaired, as was her ability to reason through a full range of consequences. Id. at 84. According to Dr. Turner, Erika had difficulty with interpersonal relationships in that she did not have the cognitive abilities to fully appreciate the meanings and the consequences of events. Id. at 87.

         The defense called Gabriella Ahlstrom, Erika's psychotherapist, as a witness. Id. at 100. Ms. Ahlstrom saw Erika for therapy four times starting in July of 2010. Id. Ms. Ahlstrom testified that her informal conclusion, pending formal and objective testing, was that Erika's mental age was similar to a five-to-eight year old child. Id. at 103. She based her assessment of Erika's mental age on her language, what she liked to play and the words that she used to express her emotions. Id. at 107.

         The testimony of these witnesses, viewed most favorably to the prosecution, more than sufficed to support a finding beyond a reasonable doubt that the victim was ...

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