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Comtois v. McKee

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

May 22, 2017

KENNETH MCKEE, Respondent.



         This matter has come before the Court on petitioner Michael Charles Comtois' pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges Petitioner's convictions for first and second-degree criminal sexual conduct. Petitioner contends that the evidence at trial was insufficient, the complainant perjured herself, the prosecutor failed to try him in a timely manner and also engaged in misconduct during closing arguments, and his trial and appellate attorneys were ineffective. The State argues in an answer to the petition that five of Petitioner's claims are procedurally defaulted and that the state courts' adjudications of Petitioner's other claims were not contrary to, or unreasonable applications of, Supreme Court precedent. The Court agrees with the State's assessment of Petitioner's claims. Accordingly, the petition will be denied.

         I. Background

         Petitioner was charged in Bay County, Michigan with one count of first-degree criminal sexual conduct and two counts of second-degree criminal conduct. The charges arose from an incident involving a seventeen-year-old girl who had a learning disability.

         The prosecutor's theory on count one was that Petitioner penetrated the complainant's labia majora, using force or coercion and causing injury. The prosecutor argued in the alternative that Petitioner was guilty of third-degree criminal sexual conduct because the complainant was mentally incapable of giving consent or of appraising the nature of her conduct.

         Counts two and three charged Petitioner with second-degree criminal sexual conduct for touching the complainant's breast, using force or coercion and causing injury. The prosecutor argued in the alternative that Petitioner was guilty of fourth-degree criminal sexual conduct because the complainant was mentally incapable at the time of the sexual contact.

         Petitioner was tried before a jury in Bay County Circuit Court. The Michigan Court of Appeals summarized the facts as follows:

On the day of the assault, the victim met defendant at a park and he asked her to walk with him. The victim testified that she and defendant walked through some woods and that at some point he picked flowers for her. The victim recalled that defendant later touched her buttocks and that she objected, that he pushed her to the ground and got on top of her, and that he lifted up her shirt and bra and repeatedly touched her breasts.[1] The victim also described that defendant took her overalls and underwear off as she tried to resist, that he managed to push his pants partially down and move her legs apart, that he put his penis partly inside her, and that he placed handfuls of dirt in her mouth to prevent her from yelling for help and threatened to kill her if she screamed. After the assault, defendant told the victim not to tell anyone what had occurred, but the next day she told friends about the attack.

People v. Comtois, No. 286965, 2009 WL 5150061, at *1 (Mich. Ct. App. Dec. 29, 2009) (unpublished)(footnote in original).

         Petitioner did not testify, and his only witness was David Biscigo, an employee of the Michigan State Police Crime Lab. Biscigo testified that a man can ejaculate seminal fluid even if he does not have a full erection and that seminal fluid on the complainant's underwear could have drained from the complainant's vagina or come from pre-ejaculate or ejaculate. Biscigo also testified that bodily fluid could have been deposited on the complainant regardless of whether penetration occurred and that, if fluid was deposited near her genital area, the fluid could have transferred from the genital area to her underpants. Defense counsel argued to the jury that the complainant was not credible, that there was no force or coercion, that the complainant consented to the sexual activity and was mentally capable of consenting, and that there was no sexual penetration.

         On May 20, 2008, the jury found Petitioner guilty, as charged, of one count of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1), and two counts of second degree criminal sexual conduct, Mich. Comp. Laws § 750.520(c)(1). The trial court sentenced Petitioner as a habitual offender to imprisonment for fifteen to twenty-three years for the first-degree conviction and to a concurrent term of five to fifteen years in prison for the second-degree convictions.

         In an appeal of right, Petitioner argued that (1) the evidence at trial was insufficient to prove penetration of the complainant's genital opening and (2) the trial court erred by denying his motion to correct the sentence for errors in the scoring of the sentencing guidelines. The Michigan Court of Appeals found no merit in Petitioner's claims and affirmed his convictions and sentence in an unpublished, per curiam opinion. See Comtois, 2009 WL 5150061. Petitioner raised the same two issues and one new issue about appellate counsel in an application for leave to appeal in the Michigan Supreme Court. On May 25, 2010, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Comtois, 486 Mich. 930 (2010).

         Petitioner subsequently filed a motion for relief from judgment in which he raised issues about the sufficiency of the evidence, the alleged use of perjury, the delay in trying him, the prosecutor's conduct, the scoring of the sentencing guidelines, and his trial and appellate attorneys' assistance. The trial court found it unnecessary to decide Petitioner's claim about the sentencing guidelines because the Michigan Court of Appeals rejected that issue on direct appeal. As for the remaining issues, the trial court stated that Petitioner had not shown “good cause” for failing to raise the issues on appeal and “actual prejudice” from the alleged irregularities. The court denied Petitioner's motion pursuant to Michigan Court Rule 6.508(D). See People v. Comtois, No. 05-10619-FC (Bay Cty. Cir. Ct. Mar. 15, 2013). Petitioner appealed the trial court's decision, but both the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See People v. Comtois, No. 317621 (Mich. Ct. App. Dec. 27, 2013) (unpublished); People v. Comtois, 496 Mich. 859 (2014) (table).

         On August 22, 2014, Petitioner filed his habeas petition. He asserts as grounds for relief that: (1) there was insufficient evidence that he penetrated the complainant's genital opening; (2) the prosecution failed to present any factual evidence to support the complainant's claim that he placed dirt in her mouth and threatened to kill or harm her; (3) the prosecution introduced and allowed perjured testimony; (4) the prosecution failed to prosecute him in a timely manner; (5) the prosecutor vouched for the complainant and portrayed Petitioner as a liar; (6) trial counsel provided ineffective assistance; and (7) appellate counsel provided ineffective assistance.

         II. Standard of Review

         “The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 (2011). Pursuant to § 2254, the Court may not grant a state prisoner's application for the writ of habeas corpus unless the state court's adjudication of the prisoner's claims on the merits

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

         “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id. at 103.

         III. Analysis

         A. Claim One: Insufficient Evidence

         Petitioner alleges that he was deprived of due process of law because there was insufficient evidence to convict him of penetrating the victim's genital opening. Petitioner contends that the complainant's testimony was vague as to where he touched her and whether he actually penetrated her. The Michigan Court of Appeals adjudicated this issue on the merits and concluded on direct review that the evidence sufficiently supported Petitioner's conviction for first-degree criminal sexual conduct.

         1. Clearly Established Federal Law

         The Supreme Court has held “that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). Following Winship, the critical inquiry on review of a challenge to the sufficiency of the evidence supporting a criminal conviction is

whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” Instead, the relevant question is whether, after viewing the evidence 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) (emphases in original).

         The Supreme Court has “made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference.” Coleman v. Johnson, 566 U.S. 650, ___, 132 S.Ct. 2060, 2062 (2012) (per curiam). First, it is the responsibility of the trier of fact to decide what conclusions should be drawn from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam)).

And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.' ”

Id. (quoting Smith, 565 U.S. at 2) (quoting Lett, 559 U.S. at 773).

         2. Application

         The Jackson standard “must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. Petitioner challenges his conviction for first-degree criminal sexual conduct, which involves “sexual penetration with another person” and some other aggravating circumstance. Mich. Comp. Laws § 750.520b(1). The only issue in dispute here is whether Petitioner sexually penetrated the complainant.

         Under state law, “sexual penetration” is “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body.” Mich. Comp. Laws § 750.520a(r) (emphasis added). “One object of the [Michigan] Legislature in providing for degrees of criminal sexual conduct was to differentiate between sexual acts which affected only the body surfaces of the victim and those which involved intrusion into the body cavities.” People v. Bristol, 115 Mich.App. 236, 238 (1981). “[P]enetration of the labia majora is beyond the body surface.” Id. Therefore, the female genital opening includes the labia majora. Id.

         The registered nurse who examined the complainant after the alleged assault testified that “[t]he labia majora are the fat, outer lips of a female's genitalia, ” which “kinda cover everything else that's on the inside.” (Trial Tr. Vol. II, at 229, May 14, 2008.) The complainant testified that Petitioner “stuffed” his penis inside her private area, but that it did not go all the way in because it was too little. (Trial Tr. Vol. III, at 112, May 15, 2008.) When the prosecutor asked the complainant what she used her “private area” for, she stated “to pee out of.” (Id. at 113.) Later, on cross-examination, ...

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