United States District Court, E.D. Michigan, Southern Division
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
V. PARKER U.S. DISTRICT JUDGE
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.
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).
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).
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
(ECF No. 1 at Pg ID 3.)
Standard of Review
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 ...