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Mullins v. McKee

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

June 26, 2017

DEANDRE MULLINS, Petitioner,
v.
KENNETH MCKEE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED IN FORMA PAUPERIS ON APPEAL

          STEPHEN J. MURPHY, III United States District Judge

         Petitioner Deandre Mullins, a prisoner in the custody of the Michigan Department of Corrections seeks habeas relief under 28 U.S.C. § 2254. ECF 1, 8. He challenges his convictions for two counts of first-degree criminal sexual conduct and one count of first-degree home invasion. Mullins claims that the prosecutor committed misconduct, his trial counsel was ineffective, and that the trial court incorrectly denied his request for substitute counsel. Respondent argues that the claims are untimely, procedurally defaulted, and without merit. For the reasons stated below, the Court will deny habeas relief.

         BACKGROUND

         Mullins's convictions arose from the sexual assault of C.M. on July 1, 2007. C.M. testified that she lived in the City of Detroit with her two young children. At approximately 2:30 a.m., she awoke to find a man approaching her with a knife. C.M. began screaming. The man told her to shut up, which she did. The man also told her that if she did as she was told, he would not hurt her. C.M. told the man that her young children were in the house. The man told C.M. that another person was in the room with the children and they would not be hurt if she did as she was told. He then raped her. After the man left her home, C.M. took her children and fled to a neighbor's house where she called police. C.M. was transported to a hospital where evidence was collected. Approximately six months after the assault, C.M. viewed a photographic lineup. She selected Mullins's photograph from the lineup, identifying him as the assailant. C.M. testified at trial that she was certain that Mullins was the person who assaulted her.

         Mullins's mother Brenda testified that she saw news reports at some point in January 2008 about a series of break-ins in Detroit. She saw surveillance video of a break-in at one of the homes. Brenda immediately recognized her son. She was aware that police believed that the suspect in the break-ins also committed several rapes. She advised her son to turn himself into police, which he did. Mullins was then arrested. Brenda spoke to him by telephone several times when he was in jail. He admitted to her that he had intercourse with the women who accused him of rape, but claimed that the acts had been consensual.

         Two other sexual assault victims, who lived within walking distance of Mullins's home, testified that they also identified a photograph of Mullins from a photographic lineup. C.M. lived within a few blocks of Mullins's place of business.

         Melanie Trapani was qualified as an expert in forensic biology and forensic DNA analysis. She obtained a DNA profile from the sperm and seminal fluid contained in C.M.'s rape kit. She compared that to a DNA sample from Mullins. Trapani testified that the DNA profile obtained from the rape-kit samples was consistent with the DNA sample from Mullins. She further testified that the likelihood of a random match in the African-American population between the two samples was one in eight quintillion.

         A Wayne County jury convicted Mullins of two counts of first-degree criminal sexual conduct and one count of home invasion. On May 22, 2008, he was sentenced to 285 months to 60 years of imprisonment for each of the criminal-sexual-conduct convictions and 141 months to 20 years of imprisonment for the first-degree home invasion conviction.

         Mullins filed an appeal of right in the Michigan Court of Appeals, claiming that the trial court erred in failing to inquire into his reasons for requesting substitute counsel, the trial court erred in failing to remove from the venire jurors who had seen media coverage of the case, a change of venue should have been granted, and defense counsel was ineffective. The Michigan Court of Appeals affirmed the convictions. People v. Mullins, No. 286323, 2010 WL 99033 (Mich. Ct. App. Jan. 12, 2010). Mullins filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Mullins, 488 Mich. 910 (2010).

         Mullins then filed a habeas-corpus petition. He raised four claims: (i) the trial court abused its discretion in denying his request for substitute counsel; (ii) adverse pretrial publicity and insufficient voir dire denied Mullins the right to a fair trial; (iii) prosecutorial misconduct; and (iv) ineffective assistance of counsel. Mullins also filed a motion to stay the habeas proceedings so he could return to state court to exhaust a claim that trial counsel was ineffective in opening the door for introduction of Mullins's prior conviction and other prejudicial character evidence. The Court granted the motion and required Mullins to file a motion in the trial court within 60 days and return to this Court within 60 days of exhausting state-court remedies. ECF 6.

         Mullins filed a motion for relief from judgment in the trial court, arguing: (i) the prosecutor knowingly presented perjured testimony and withheld exculpatory evidence; (ii) counsel was ineffective in failing to seek an expert in identification; and (iii) counsel was ineffective in opening the door to prior bad acts testimony. The trial court denied the motion. See ECF 13-13. Mullins filed an application for leave to appeal in the Michigan Court of Appeals raising the first two claims raised in the trial court. The Michigan Court of Appeals denied leave to appeal. People v. Mullins, No. 312358 (Mich. Ct. App. May 30, 2013). The Michigan Supreme Court also denied leave to appeal. People v. Mullins, 495 Mich. 913 (2013).

         Mullins filed a motion to lift the stay and an amended petition in this Court. ECF 8. The Court granted the motion to lift the stay and reopened the case. ECF 10. The amended petition raises these claims:

I. Mullins was deprived of a fair trial where newly discovered evidence shows that the prosecution presented perjured testimony and withheld exculpatory evidence thereby committing fraud on the court.
II. Trial counsel deprived Mullins of the effective assistance of counsel where she failed to seek an expert in identification to explain the implausible and impossible claims made by the complaining witness.
III. Mullins is entitled to a new trial where the trial court abused its discretion when it denied Mullins's ...

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