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Dufresne v. Palmer

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

March 6, 2017

JOEL NATHAN DUFRESNE, Petitioner,
v.
CARMEN PALMER Respondent.

          OPINION

          Paul L. Maloney United States District Judge.

         Petitioner Joel Nathan Dufresne presently is incarcerated at the Chippewa Correctional Facility. Following a jury trial in the Emmet County Circuit Court, Petitioner was convicted of six counts of third-degree criminal sexual conduct (CSC III) involving force or coercion, Mich. Comp. Laws § 520d(1)(b), and three counts of first-degree criminal sexual conduct (CSC I) involving personal injury, Mich. Comp. Laws § 750.520b(1)(f). On September 22, 2006, the trial court sentenced him to six terms of imprisonment of 25 to 50 years for the CSC III convictions and three terms of 50 to 75 years for the CSC I convictions. In his pro se petition, Petitioner raises five grounds for relief, as follows:

I. TRIAL DEFENSE COUNSEL, WITH NO STRATEGIC PURPOSE, FAILED TO INTERVIEW AND PRESENT WITNESSES, AND FAILED TO INVESTIGATE AND PRESENT FACTS, ALL OF WHICH WOULD HAVE SUPPORTED PETITIONER'S CLAIM THAT THE SEXUAL CONDUCT FOR WHICH HE HAS BEEN SENTENCED TO 50-75 YEARS IN PRISON WAS CONSENSUAL, AND THAT THE UNSUPPORTED AND UNCORROBORATED CLAIMS OF COMPLAINANT WERE LACKING IN CREDIBILITY. AS A RESULT OF THESE AND OTHER FAILURES, INCLUDING FAILURE TO INVESTIGATE AND PRESENT AT TRIAL CRITICAL IMPEACHING MATERIAL CONTAINED IN TAPED INTERVIEWS OF PETITIONER AND COMPLAINANT, AND FAILURE TO OBJECT TO INADMISSIBLE AND PREJUDICIAL EVIDENCE AGAINST PETITIONER, PETITIONER DUFRESNE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE FEDERAL CONSTITUTION (U.S. CONST. AMEND. VI).
A. FAILURE TO INVESTIGATE PRIOR STATEMENTS OF PETITIONER AND COMPLAINANT AND FAILURE TO INTRODUCE CRITICAL IMPEACHING MATERIAL FROM THESE STATEMENTS.
B. TRIAL DEFENSE COUNSEL'S FAILURE TO INVESTIGATE AND PRESENT FACT WITNESSES AND GENERAL FACTS PERTAINING TO COMPLAINANT'S CREDIBILITY.
II. PETITIONER WAS DENIED HIS FEDERAL DUE PROCESS RIGHT TO PRESENT A DEFENSE, AND HIS FEDERAL CONSTITUTIONAL RIGHT TO CONFRONTATION (U.S. CONST., AMENDS. V, VI & XIV), WHEN WITNESS INTIMIDATION, AND RULINGS OF THE TRIAL COURT, ALONG WITH INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL (ISSUE I, SUPRA), PROHIBITED EXPLORATION OF AREAS CRITICAL TO FACTUAL SUPPORT OF HIS DEFENSE THAT THE CHARGES IN THIS CASE RESULTED FROM A FALSE ALLEGATION.
III. PETITIONER DUFRESNE WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE FEDERAL CONSTITUTION (U.S. CONST. AMEND. VI) WHERE HIS APPELLATE COUNSEL, ON DIRECT APPEAL, NEGLECTED “DEAD BANG WINNERS.”
IV. THE MICHIGAN COURT OF APPEALS UNREASONABLY APPLIED DOYLE V. OHIO, AND ISSUED AN OPINION THAT WAS CONTRARY TO DOYLE, WHEN IT CITED A STATE CASE FOR THE PROPOSITION THAT FAILURE TO ‘IMPUGN THE REQUEST FOR COUNSEL' OR ‘CREATE ANY INFERENCE FROM THE INVOCATION OF THE RIGHT TO COUNSEL' ABSOLVED THE STATE FROM CONSEQUENCES OF REPEATED DOYLE ERROR.
V. THE MICHIGAN COURT OF APPEALS, ON DIRECT REVIEW, UNREASONABLY APPLIED CLEAR UNITED STATES SUPREME COURT PRECEDENT, AND UNREASONABLY DETERMINED THE FACTS, WHEN IT RULED THAT PETITIONER'S DUE PROCESS RIGHT TO A FAIR TRIAL (U.S. CONST. AMENDS. V, XIV) WAS NOT VIOLATED WHEN THE PROSECUTOR ENGAGED IN SEVERE AND REPEATED OUTCOME-DETERMINATIVE MISCONDUCT BY ASKING ABOUT PETITIONER'S CHARACTER- THAT HE HAD TIES TO A WHITE SUPREMACIST GROUP THAT WAS INVOLVED WITH THE MURDER OF A JUDGE'S FAMILY IN CHICAGO (A FALSE AND HIGHLY PREJUDICIAL CLAIM).

         (Br. in Supp. of Pet., ECF No. 1, PageID.9-10.)

         Respondent has filed an answer to the petition (ECF No. 7) stating that the grounds should be denied because the claims are either noncognizable, procedurally defaulted or without merit. Upon review and applying the AEDPA standards, the Court concludes that Grounds III, IV and V are without merit and Grounds I and II are procedurally defaulted. Accordingly, the Court will deny petition.

         Procedural and Factual Background

         I. Trial Proceedings

         The state prosecution arose from the following circumstances, as summarized by the Michigan Court of Appeals:

Defendant's convictions arose out of multiple forced sexual acts with his former girlfriend. The girlfriend testified that defendant threatened to kill her, her daughters, and her parents if she reported the acts to law enforcement authorities. She further testified that defendant told her that he would take their son away from her if she refused to participate in the sexual acts.

(10/14/08 Mich. Ct. App. Op., 1, ECF No. 32.) Petitioner was charged with six counts of CSC I, twelve counts of CSC III, and extortion. Following a preliminary examination on April 3, 2006, he was bound over on all of the CSC charges. (Prelim. Exam. Tr. (PE), 81-82, ECF No. 10.) The district court declined to bind Petitioner over on the extortion count. Thereafter, the prosecutor dismissed six counts of CSC III. The prosecutor also filed an amended information charging petitioner as a habitual offender, fourth offense. (Reg. of Action, 2, ECF No. 9.) Petitioner was tried before a jury beginning August 16, 2006, and concluding on August 18, 2006. (Trial Transcripts TT I to TT III, ECF No. 12-14.)

         At trial, the jury heard the competing versions of events described by Angela Wiertalla and Petitioner. Wiertalla testified that she met Petitioner in October 2003, and they became romantically involved in the latter part of that year. (TT I, 197-99.) In March 2004, Wiertalla became pregnant with their son (Hale). (Id., 200.) While Petitioner initially was kind, the relationship became abusive, with Petitioner threatening to take the child, claiming that Wiertalla's past drug problems would enable Petitioner to obtain custody of Hale and cause Wiertalla to lose her two other children. He also threatened to hurt Wiertalla's parents. Beginning in September 2004, Petitioner repeatedly beat Wiertalla, often hitting her in the head. (Id., 203-06, 211-17, 225-28.)

         In February or March 2005, they moved into a trailer next door to Wiertalla's parents. (Id., PageID.208.) After that, Petitioner constantly demeaned Wiertalla and hit her more frequently. In March, 2005, he beat her severely before driving off. (Id., 213-214.) Wiertalla began walking to the emergency room, but Petitioner picked her up on the road, brought her home, and beat her some more. (Id., 214-17.) Wiertalla called into work sick, because she was badly hurt. She went to the doctor, but she told the doctor that a pregnant woman had beaten her because Wiertalla had suggested that the woman should not have been drinking. (Id., 217.) Wiertalla testified that she did not tell anyone, because she was afraid of losing her children. (Id., 218.)

         In September 2004, Petitioner got mad at Wiertalla for going to a barbeque at her cousin's house. Petitioner yelled at her over the phone and for the first time threatened to take the baby with him when it was born. Petitioner eventually joined her at the barbeque. Petitioner took her into a bedroom and began choking her, demanding to know what she had done. (Id., 202-03.) Petitioner continued, off an on, for some time. Wiertalla went outside, and Petitioner grabbed her by the hair and started dragging her down the road. She fell and injured her pelvic cartilage. Petitioner punched her repeatedly in the head. (Id., 203.) Wiertalla went to the emergency room the next day. When she found out that the hospital intended to inform the police about the assault, she left. The police came to her house while she was sitting on her porch with Petitioner. Wiertalla lied to the police about what had happened. (Id., 203-04.)

         Petitioner was involved with a white supremacist group, and he coerced Wiertalla to participate. (Id., 219-21.) In June 2005, he compelled her to attend a barbeque near Cadillac or Mesick, which was a gathering of members of the group. (Id., 222-25.) Because Petitioner did not like her behavior, he punched her in the mouth and made her sit in the car. (Id., 224-25.) Later, she went back out to the fire pit, and Petitioner subsequently beat her severely. She hit him with a stick she found. (Id., 229.) Wiertalla looked for Petitioner later, and, having learned he went to the Uma Bar, she went too. Petitioner beat her in the parking lot of the bar. (Id., 227-28.) She eventually ran to a house, ending up on the porch. Petitioner attempted to push his penis into her mouth, telling her she needed to drink his urine. (Id., 229, 232.) The police found her on the porch in Petitioner's presence. (Id., PageID. 228.) She lied to them about what had happened. They took her by ambulance to the Traverse City hospital. (Id., 232.)

         The day she returned home from the hospital, her mouth was still split open. Petitioner came into the bathroom while she was on the toilet and insisted that she suck his penis, despite the fact that she told him it hurt too much. He punched her in the side of the head to force her to comply. (Id., 235.) The following day, while she was recovering and sleeping on the couch, he woke her and demanded that she turn over. She cried and said that she did not want to, but he pulled down her pajama bottoms and shoved three fingers, as hard as he could, into her anus. She screamed and cried, but he continued. (Id., 237.) When he left, she fell back asleep, only to wake and find him masturbating over her. He ejaculated onto her face and refused to allow her to wipe it off. (Id., 238.) Wiertalla was afraid to tell anyone what was happening, as Petitioner threatened to take her son and kill her family if she told. (Id., 238-39.) In the middle of November, Petitioner suddenly took their son to Florida to visit family, ostensibly for four or five days, but he did not return until December 2, 2005. (Id., 240.) He left for Florida again on December 16 or 17, where he stayed through Christmas. (Id., 241.) Wiertalla was afraid that Petitioner would not return with her son. (Id., 244.) While Petitioner was in Florida, he made sexual demands on Wiertalla. He insisted that she arrange a threesome, or she would never see Hale again. She pretended to do so. (Id., 242; TT II, 35.) Subsequently, he told her to set up the web camera, so that he could watch her masturbate. (Id., 242.) Petitioner demanded that she put a broom handle up her anus, telling her that she would not hear from her son until she did it. Wiertalla acceded in the demand, to the extent that she showed him the base of a Fisher Price ring toy. Petitioner demanded that she insert the column into her anus repeatedly. Petitioner would not let her stop despite repeated requests. (Id., 243.) Petitioner then demanded that she describe how she would perform oral sex with a woman, insisting that she continue until he was satisfied with the description. (Id., 243-44.)

         Petitioner returned from Florida on December 29 or 30, 2005. (TT II, 7.) When he came back, he insisted that Wiertalla masturbate for him while he was on the phone, despite her protests. He then took her into the shower and told her to bend over. She again told him that she did not want to, but he bent her over and inserted his penis in her anus. After he took it out, he turned her around, made her get on her knees, and take his penis in her mouth, telling her to clean it off. (Id., 8.) Wiertalla was crying and begging Petitioner not to make her do it, but he threatened to beat her. When she complied, he urinated in her mouth. (Id., 9.) Petitioner used the Fisher Price toy to penetrate Wiertalla anally on two occasions in January 2006, before she hid it. On both occasions, he made her clean it off in her mouth. (TT I, 260; TT II 10-11, 13.) The anal penetrations cause her to bleed for two days. Petitioner thereafter daily demanded anal sex, to the point that she had fecal incontinence one day when she was preparing for work. (TT II, 15.) On January 25, 2006, Petitioner tied Wiertalla to Hale's crib, blindfolded her, and pushed a vibrator into her anus. He then forced her to clean it off in her mouth. Petitioner took his fingernail and dug around in her buttocks before putting his penis in her anus and ejaculating. (Id., 16.) Wiertalla testified that she did not fight Petitioner because it would do no good and would only get her beaten. (Id., 17.) She bled quite badly, and her rectum hurt for days. (Id., 18.) A few days later, Petitioner tied her to a kitchen chair by the neck, using a receiving blanket, so that she could not move her head. Petitioner told her that he was going to “f*ck her mouth, he was going to finish off [her] gag reflex.” (Id., 18, 20.) Petitioner ejaculated into her mouth. The blanket was not so tight as to choke her, but it left pinch marks on her neck. (Id., 22.) Petitioner had on other occasions tested her gag reflex by holding her head with his hands while his penis was shoved all the way down her throat, so she could not breathe. (Id., 18.)

         Around February 7, Wiertalla left work early, as she was throwing up. Her mother picked her up and brought her home. Petitioner was out. When he came back, Petitioner demanded that she suck his penis. She objected, saying she was sick, but Petitioner insisted she do it anyway. He left the room but kept returning every few minutes to wake her up and do it again. Finally, he came in and put his fingers in her rectum. She told him not to, as she had diarrhea, but he pulled down her pants and inserted his penis. When Petitioner discovered feces on his penis, he hit her in the head and called her names. (Id., 23-24.)

         On Valentine's Day, Petitioner cleaned everything he wanted out of the house and took Hale with him. At that point, knowing that Petitioner was finally gone, Wiertalla called her probation officer and told him what had happened. The probation officer told her to wait and that he would contact someone. Gwen White-Erickson called shortly thereafter and met with Wiertala. Wiertalla told her everything that had happened and that, she believed, Petitioner had taken her son to Florida. (Id., 248-51.)

         After she had reported the incidents, the police gave her a recorder for her phone and for her parents' phone. They recorded three telephone calls from Petitioner, one of which was played for the jury. (TT I, 253-55; TT II, 114-15.) During the conversations, Wiertalla brought up the things Petitioner had done, in an attempt to get Petitioner to admit those things. (TT I, 255.) The trial court described the conversation played for the jury, as follows:

[T]he jury heard a tape recorded phone call between Defendant and Wiertalla[] where he apologized “for all the sick mean shit that I've done to you.” Defendant also said on the recording: “Sorry for asking you to suck my dick after I hit you. Sorry for testing your gag reflex.” He also said: “Sorry about the pee. I know the things that I did.”

         (5/22/08 Cir. Ct. Op. Den. Mot. for New Trial, 2, ECF No. 19.)

         Wiertalla's testimony was partially corroborated by testimony from three coworkers concerning her absences from work and bruises, as well as Wiertalla's fear of Petitioner. (TT II, 83-86, 87-89, 93-94.) It also was partially corroborated by testimony of her doctor about an injury to her internal rectal area. (Id., 60-62.) Further, Michigan State Police Trooper Brian Cobalt testified that he and his partner Rick Lifts found Petitioner standing over a badly wounded Wiertalla when they came to investigate an incident near the Uma Bar. (Id., 160-167.) Petitioner was intoxicated and had blood on his shirt and cuts on his hands. (Id., 162.) Wiertalla was so badly injured that the officers called an ambulance, and she was transported to the hospital. (Id., 166-67.)

         Petitioner testified in his own defense. He corroborated a number of allegations, though he claimed the incidents were consensual, and he disputed other allegations. Much of Petitioner's testimony was unhelpful to his case, as it was unapologetic and demonstrated callousness toward degrading activities.

         Petitioner contended that Wiertalla argued about everything and was jealous. (TT II, 132-33.) She complained that he did not make enough money to support them, and she began hitting him. Petitioner testified that he did not hit her back. (Id., 133.) Once, while she was pregnant, Wiertalla got mad at Petitioner and was stomping and threatening to have an abortion. In response, Petitioner testified, he told her that he would kill her if she hurt the baby and that he would take the baby when he was born. (Id., 136.) According to Petitioner, when Hale was born in December 2004, Petitioner was present at the hospital, and he watched the nurses carefully to prevent them from hurting Hale by sticking him with needles, and the like. He also refused to let the nurses wrap the baby in blankets, but instead wrapped him in his own shirt. When they got home from the hospital, Petitioner did not like that Wiertalla was drinking coffee and smoking. He was afraid the baby would not be taken care of. (Id., 134-35.) Petitioner testified that Wiertalla suffered from postpartum depression. (Id., 136.)

         Petitioner described the June 2005 incident quite differently than Wiertalla, saying that he did not want Wiertalla to go to the barbeque, because she was so erratic in her behavior and because he did not want her to violate her probation by being with people who were drinking. (Id., 138.) Petitioner's recitation was not perfectly chronological, but he stated that Wiertalla became drunk, acted crazy, fell asleep in the car, ran out of the car and fell down, went to sleep, and ultimately followed Petitioner to the Uma Bar. Wiertalla asked to talk to him outside, where she started screaming at him and hitting him. He hit her back. Wiertalla shoved him and he fell. He jumped up and hit her. During one of her rages, she hit him in the head with a board. (Id., 144-46.)

         Petitioner testified that the relationship changed after the June 2005 incident. Petitioner tried to help Wiertalla with her postpartum depression and to be supportive, because he did not want his son to grow up without a mother. (Id., 147.) Petitioner claimed that his first trip to Florida was on December 19, 2005, and he was just bringing his son to meet his mother. (Id., 148.) According to Petitioner, he spoke to Wiertalla constantly while he was in Florida. He missed his flight, which was supposed to return on December 23. (Id., 149-50.) Petitioner claimed that he was just joking when he talked about having a threesome, because it was a running joke between them. (Id., 151.) He also claimed that the web-cam filming of sexual activity was consensual and that Wiertalla was just doing a show for him. He denied threatening Wiertalla with taking Hale. (Id., 152-53.) Petitioner denied ever threatening Wiertalla, and he testified that her stories about his assaults made no sense, as the children could have walked in at any time. (Id., 157.) He specifically denied tying Wiertalla up to a chair, and stated that they did not even own such a chair. (Id., 164.) According to Petitioner, the two had always engaged in anal and oral sex when Wiertalla had her period and vaginal sex otherwise. (Id., 165.) He admitted to accidentally urinating while Wiertalla was giving him oral sex. (Id., 165.) He also admitted to “tapping” Wiertalla on the back of her head while she was performing fellatio, saying, “That's testing a gag reflex. That's a test. . . . Used to do it in high school. . . . It wasn't done in malice. It was done in joke.” (Id., 185-187.)

         At the conclusion of trial, on August 18, 2006, the jury found Petitioner guilty of three counts of CSC I and not guilty of the other three counts of CSC I. The jury found Petitioner guilty of all six counts of CSC III. (TT III, 51-52.) On September 22, 2006, Petitioner was sentenced as a fourth-offense felony offender to serve prison terms of 50 to 75 years on each of the CSC-I convictions and 25 to 50 years on each of the CSC-III convictions. (Sentencing Transcript, (S. T.), 15.)

         II. Direct Appeal

         Petitioner pursued an appeal in the Michigan Court of Appeals. On April 30, 2007, he filed a brief on appeal and a motion to remand, raising the following three issues:

1. It was reversible error for two police witnesses to testify that [Petitioner] asked to speak to a lawyer during his interrogation - that he had “lawyered up” in the words of one of the officers - in violation of [Petitioner's] federal and state constitutional rights.
2. The trial court erred in admitting, the prosecution admitted misconduct by talking about, and counsel was ineffective for failing to object to prejudicial testimony regarding [Petitioner's] character - that he had ties to a white supremacist group that was involved with the murder of a judge's family in Chicago, and that he was scary and intimidating.
3. Trooper Armstrong impermissibly testified regarding the credibility of the complainant's allegations, prejudicing the defense by vouching for the veracity of the complainant, depriving [Petitioner] of his due process right to a fair trial, and trial counsel was ineffective for failing to object to the testimony.

         (Pet., ECF No. 1, PageID.2-3.) On July 17, 2007, the court of appeals granted the motion for remand and directed Petitioner to file a motion seeking an evidentiary hearing on the claims of ineffective assistance of counsel in the trial court within 14 days.

         Petitioner filed a motion for an evidentiary hearing and a motion for new trial based on the ineffective assistance of counsel: (1) counsel was ineffective in introducing and allowing testimony that Petitioner was involved in a white supremacist organization; (2) counsel was ineffective in failing to object to Detective White-Erickson's statement that she had previously investigated Petitioner as part of a larger FBI investigation into the entire white supremacy movement, following the murder of a judge's family in Chicago; (3) counsel was ineffective in failing to object to testimony by Petitioner's cell mate, Joseph Bingamen, that Petitioner was scary and intimidating; and (4) counsel was ineffective in failing to object to Trooper Armstrong's testimony about his investigatory practices, which allegedly bolstered the complainant's allegations. The court held an evidentiary hearing on October 25, 2007. (10/25/07 Hr'g on Mot. for New Trial, ECF No. 16.) On May 22, 2008, after receiving additional briefing, the court issued a detailed written opinion denying the motion. (5/22/08 Cir. Ct. Op. Den. Mot. for New Trial, ECF No. 19.)

         On June 23, 2008, appellate counsel filed a supplemental brief on appeal, raising two additional arguments: (1) the trial court erred in concluding that counsel was not ineffective in introducing evidence that Petitioner was involved in a white supremacist group involved in the murder of the family of a federal judge; and (2) the trial court erred in concluding that counsel was not ineffective in failing to object to the admission of testimony by Trooper Armstrong about the credibility of the complainant's allegations. (Appellant's Supp. Br. on Appeal, 2, ECF No. 32.) In an unpublished decision issued on October 14, 2008, the Michigan Court of Appeals denied all appellate grounds and affirmed Petitioner's convictions and sentence. (10/14/08 Mich. Ct. App., ECF No. 32.)

         Petitioner filed an application for leave to appeal to the Michigan Supreme Court. Petitioner sought leave to appeal the three original issues presented to and rejected by the Michigan Court of Appeals, together with the following claim:

The cumulative effect of counsel's errors is so great that the outcome of the proceedings is unreliable, where multiple egregious incidents of prosecutorial misconduct occurred without objection, counsel failed to investigate or to present a meaningful defense, sentencing was improperly enhanced, clearly stronger issues on appeal were neglected, and counsel deprived [Petitioner] of his right to a lie detector test.

         (Def.-Appellant's Appl. for Leave to Appeal, ECF No. 33.) On April 28, 2009, the Michigan Supreme Court denied Petitioner's application for leave to appeal because it was not persuaded that question presented should be reviewed by the court. (4/28/09 Mich. Order, ECF No. 33.)

         III. Postconviction Review

         Petitioner, through habeas counsel, filed a motion for relief from judgment in the Emmet County Circuit Court on July 12, 2010, raising the first three issues presented in his habeas petition, together with the following fourth issue:

[PETITIONER] WAS AND CONTINUES TO BE DENIED HIS RIGHT TO A FAIR TRIAL, AND HIS RIGHT TO ENGAGE STATE POSTCONVICTION PROCEEDINGS AND LATER FEDERAL HABEAS REVIEW, IN VIOLATION OF THE DUE PROCESS CLAUSES OF THE UNITED STATES AND MICHIGAN CONSTITUTIONS (US CONST, AM V; CONST 1963, ART 1 § 17) WHERE THE STANAWAY PROCEDURES WITH RESPECT TO COMPLAINANT'S PSYCHIATRIC RECORDS WERE NOT ENGAGED, AND WHERE OTHER DISCOVERY FAILURES ON POSTCONVICTION CONTINUE TO PREJUDICE THE DEFENSE. THIS COURT SHOULD GRANT [PETITIONER'S] REQUEST FOR RELEASE OF EVIDENCE PREVIOUSLY PROVIDED TO THE DEFENSE BUT LOST DUE TO NEGLIGENCE OF TRIAL AND DIRECT APPEAL COUNSEL UNDER STATE AND FEDERAL DUE PROCESS GUARANTEES (US CONST, AM V; CONST 1963, ART 1, § 17.

         (Pet'r's Mot. for Relief from J., 7, ECF No. 23.) In a lengthy and scathing opinion issued on July 15, 2011, the circuit court rejected all arguments. The court expressly held that, because Petitioner could not demonstrate the existence of a “significant possibility that [he was] innocen[t] of the crime, ” he was required under Mich. Ct. R. 6.508(D) to show both good cause for his prior failure to raise his grounds (on direct appeal or in the earlier motion for new trial) and actual prejudice. (7/15/11 Cir Ct. Op. Den. Relief from J., 2, ECF No. 20.) In reaching its decision that Petitioner could not show actual innocence to excuse his default, the court enumerated specific examples of why Petitioner lacked credibility at trial, concluding with the following:

In summary, Defendant admitted key aspects of the accusations against him. His demeanor, language and appearance while testifying strongly corroborated the prosecution's case. To the extent that he denied certain allegations, his lack of credibility was palpable. For the above reasons, the Court finds there is not a significant possibility that Defendant is innocent.

(Id., 6.) The court then detailed its reasons over the next seven pages for holding that Petitioner could not demonstrate either the requisite cause or actual prejudice for failing to raise the claims on direct appeal, because he could not show either that counsel was ineffective or actual prejudice caused by the alleged errors. (Id., 6-11.)

         Petitioner sought leave to appeal to the Michigan Court of Appeals, raising the first three grounds presented in the motion for relief from judgment. On December 27, 2011, the court of appeals denied Petitioner's application for leave to appeal “for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D).” (12/27/11 Mich. Ct. App. Order, ECF No. 34.) He sought leave to appeal to the Michigan Supreme Court, which, on October 22, 2012, denied Petitioner's application for leave to appeal on the same basis. (10/22/12 Mich. Ct. Order, ECF No. 35.)

         On November 2, 2012, Petitioner filed his petition for federal habeas corpus relief. (Pet., ECF No. 1.)

         Standard ...


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