United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO APPEAL IN FORMA PAUPERIS
L. LUDINGTON United States District Judge.
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.
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.
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
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
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).
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
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
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.
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.
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).
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.
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).
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
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.
“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
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).
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.
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.
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.
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.
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 ...