United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis Mag. Judge
AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS ,
DENYING PETITION FOR WRIT OF HABEAS CORPUS , DENYING AS
MOOT MOTION TO DEFER RULING , AND DENYING CERTIFICATE OF
APPEALABILITY AND PERMISSION TO APPEAL IN FORMA
E. LEVY United States District Judge
Anderson (“Petitioner”), a Michigan Department of
Corrections prisoner, filed this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1.)
Petitioner challenges his convictions, following a bench
trial in Alpena Circuit Court, for first-degree criminal
sexual conduct, Mich. Comp. Laws § 750.520b(1)(c),
first-degree home invasion Mich. Comp. Laws §
750.110a(2), and third-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520d(1)(b). As a result of these
convictions, Petitioner is serving concurrent sentences of
eighty-five months to fifty years and fifty months to twenty
years. (Dkt. 1 at 1.)
matter is before the Court on respondent's motion to
dismiss. (Dkt. 7.) Petitioner filed a motion to defer the
ruling on respondent's motion until he filed a response.
(Dkt. 9.) Petitioner thereafter filed a response to the
motion. (Dkt. 10.)
reasons set forth below, the Court grants respondent's
motion to dismiss, and denies the petition for a writ of
habeas corpus. The Court also denies as moot Petitioner's
motion to defer, and denies a certificate of appealability
and permission to proceed on appeal in forma
was convicted after a bench trial on June 23, 2009 of home
invasion and first- and third-degree criminal sexual conduct
against Nichole Barilik and Bobbi Hanna. (Dkt. 1 at 1.)
trial, Barilik testified that she and Petitioner had a
romantic relationship, which she ended in mid-September 2008.
After this, Petitioner continued to call her. On December 2,
2008, Barilik agreed to talk with Petitioner at Bobbi
Hanna's house, where Petitioner was staying. During the
conversation, Petitioner slapped Barilik and grabbed her by
the neck. Hanna heard the scuffle, and she told Petitioner to
stop. Barilik then left.
testified that later that night, she woke up at approximately
5 a.m. to find Petitioner standing next to her bed, wearing
only his boxer shorts. Petitioner touched her under her
blanket. She told him to leave, but Petitioner pulled back
the covers, climbed in her bed, held her wrists down, and
sexually assaulted her.
went to the police station on December 8, 2008 to report that
Petitioner was harassing her, but she did not mention the
sexual assault. Barilik testified that she decided to pursue
the rape charge when she heard that Bobbi Hanna had accused
Petitioner of raping her.
trial, Bobbi Hanna also testified. She testified that she met
Petitioner on August 14, 2008, and became friends with him.
He moved in with her in November 2008. On December 8, 2008,
Petitioner broke off their romantic relationship, stating
that he was in love with Barilik.
days later, on the night of December 10, 2008, Petitioner
came home around 1:30 a.m. After Hanna went into her room and
changed into her nightgown, Petitioner came into her room and
wrapped his arms around her. Hanna testified that she shoved
Petitioner away and told him he needed to go to bed. Instead,
Petitioner took his clothes off and sexually assaulted her.
Petitioner left, Hanna called her friend Jessica Cohoon.
Cohoon testified at trial that Hanna was hysterical on the
phone, and told her that Petitioner raped her. Cohoon had a
co-worker call the police and go ...