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Westbrook v. Klee

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

July 13, 2017

DERRICK WESTBROOK, Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Derrick Westbrook, (“Petitioner”), confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b)(ii); and second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(b)(ii). For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted following a jury trial in the Wayne County Circuit Court. This 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's convictions stem from the sexual assault of his daughter, “AG, ” who was 13 years old at the time of the incident. AG testified that defendant came into her bedroom, laid down on the bed with her, and rubbed her breasts. He then pulled down her shorts and underwear and rubbed her buttocks before inserting his penis into her vagina. After defendant ejaculated, AG got out of bed and went into the bathroom. When she returned, defendant was lying asleep on the bed. He awoke five or ten minutes later and started moving his hand up and down on his penis. He asked AG to do the same thing for him, which she did, before he moved her hand away and resumed moving his own hand up and down on his penis.

People v. Westbrook, No. 308410, 2013 WL 1007730, at *1 (Mich. Ct. App. Mar. 14, 2013). Petitioner was denied leave to appeal his case because the appellate court was not persuaded that the questions presented should be reviewed. People v. Westbrook, 835 N.W.2d 591 (Mich. 2013).

         Petitioner filed a post-conviction motion for relief from judgment pursuant to M.C.R. 6.500, et. seq., which was denied. People v. Westbrook, No. 11-009139-01-FC (Third Cir. Ct., Oct. 24, 2013). The Michigan appellate courts denied petitioner's leave to appeal. People v. Westbrook, No. 321078 (Mich. Ct. App. May 6, 2014); lv. den. 859 N.W.2d 508 (2015).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. Defense counsel provided ineffective assistance, in violation of the constitutional right to the assistance of counsel and the federal and state Due Process Clauses, where counsel failed to: 1) have available at the trial the preliminary examination transcripts so that he could cross-examine the complaining witnesses; 2) call a witness who would have testified that the complainant had numerous inconsistencies in her testimony.
II. Defendant-Appellant should be allowed to file an amended Standard 4 brief because appellate counsel did not provide trial transcripts so that Defendant-Appellant could outline the facts necessary to properly brief the issues raised above.

(ECF No. 1 at Pg ID 3.)

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the ...

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