United States District Court, E.D. Michigan, Southern Division
MICHAEL D. VANCE, Petitioner,
PAUL KLEE, Respondent.
OPINION AND ORDER ON REMAND DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS
D. Vance, (“Petitioner”), confined at the Parnall
Correctional Facility in Jackson, Michigan, seeks the
issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his conviction for seven counts of first-degree
criminal sexual conduct, M.C.L.A. 750.520b(1)(a); and three
counts of second-degree criminal sexual conduct, M.C.L.A.
750.520c(1)(a). For the reasons stated below, the petition
for writ of habeas corpus is DENIED WITH
was charged with numerous counts of criminal sexual conduct
in Oakland County Circuit Court Case # 03-193604-FC and was
separately charged with one count of second-degree criminal
sexual conduct in Oakland County Circuit Court Case #
03-192752-FH. The judge ordered these two cases consolidated
for a single trial.
B.K. testified that petitioner
was her mother's boyfriend and lived with her and her
mother in an apartment. B.K. was born on November 27, 1991.
B.K. testified that during a two week period when she was
nine years old, petitioner woke her up in the middle of the
night, took her to the bathroom, and forced her to perform
fellatio on him while petitioner sat on the toilet and the
victim sat on the bathroom floor. (Tr. 6/8/2004, pp. 115-26).
After the two-week period, B.K. wrote a note to her mother to
inform her about the sexual assaults. B.K.'s mother
requested that B.K. not tell her grandmother about the sexual
assaults. (Id., at pp. 128-30). Three years later,
when B.K. was in middle school, she informed a friend, a
school counselor, and personnel at Care House about the
sexual assaults. (Id., at pp. 131-32).
Lynn Andreen had lived in another unit in the same apartment
building that B.K., her mother, and petitioner had resided
in. Andreen testified that one day in March of 2001,
Andreen's roommate pounded on the door while she was
taking a shower and asked her to go upstairs and speak with
B.K.'s mother. Andreen went upstairs and noticed that
B.K.'s mother was crying and B.K. appeared upset.
B.K.'s mother handed Andreen a notebook which contained a
note in a child's handwriting, stating “Mommy,
Michael is making me put his penis in my mouth. Make him
stop.” When B.K.'s mother asked Andreen what she
should do, Andreen suggested that she should call the police,
but B.K.'s mother indicated that she would like to speak
with petitioner first. Andreen suggested that B.K.'s
mother at least speak with a friend of hers who was a
lieutenant with the Lake Orion Police. Andreen subsequently
called this lieutenant and asked for his advice.
(Id., pp. 169-75).
testified that she was a second-grader at the time of
petitioner's trial. Petitioner was one of her
mother's prior boyfriends. When K.V. was six years old,
petitioner made her play “with his private”, i.e.
with what petitioner used to “go to the
bathroom.” K.V. testified that petitioner tried to make
her use her mouth to stimulate him, but she did it with her
testified that petitioner did this in an area with trees all
around and a sign in the middle. K.V. subsequently told her
mother about the assault after petitioner had moved out of
their residence. (Tr. 6/9/2004, pp. 10-20).
mother confirmed that K.V. had informed her that petitioner
sexually assaulted her. (Id., pp. 30-35). On
cross-examination, K.V.'s mother admitted that she was
manic-depressive, that petitioner had broken up with her,
that petitioner had obtained a personal protection order
against her as a result of her trying to make contact with
him, and that it was her ex-husband who reported the incident
to the police on May 14, 2003, after she had told him what
had happened. (Id., pp. 39-41).
father testified that he wrote a statement for the police on
May 6, 2003. In this statement, K.V.'s father indicated
that K.V. informed him that petitioner had taken her to a
park and asked her to touch him on his private parts with her
mouth. K.V. told him that she did not want to do that and
touched petitioner's genitals with her hands instead.
K.V.'s father indicated that his daughter subsequently
pointed out to him where the assault had taken place.
(Id., pp. 49-50, 54-55).
mother, Imogene Ruth Cochrane, testified for the defense. One
night, B.K.'s mother pounded on her door and asked her to
“go get Michael with me.” B.K.'s mother
informed Cochrane of B.K.'s allegations en route to pick
up petitioner from his workplace. When confronted with the
allegations, petitioner told Cochrane and B.K.'s mother
that “I've never heard anything like this before,
I've never done anything like this before.”
(Id., pp. 65-69). A few days later, B.K.'s
mother asked Cochrane to look at a letter that B.K. had
allegedly written. Cochrane testified that the handwriting
did not look like it was done by a child and was not worded
as a child would have worded it. Cochrane told petitioner and
B.K.'s mother after reviewing the letter that she did not
know what to think of this because petitioner had a good
military career. B.K.'s mother called B.K. and asked her
if this was her letter or not. The trial court then sustained
the prosecutor's objection on hearsay grounds and would
not permit Cochrane to testify what B.K. had stated in her
answer to her questions. (Id., pp. 70-80).
testified in his own behalf and denied sexually assaulting
either victim. (Tr. 6/10/2004, pp. 31-32, 38, 45, 50-56,
convictions were affirmed on appeal. People v.
Vance, Nos. 260292; 261914 (Mich.Ct.App. May 26, 2005);
lv. den. 474 Mich. 1024, 708 N.W.2d 402 (2006).
then filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. Seq., which the trial
court denied. People v. Vance, Nos.
03-192752-FH/03-193604-FC (Oakland County Circuit Court,
March 8, 2007). The Michigan appellate courts denied
petitioner leave to appeal. People v. Vance, No.
282797 (Mich.Ct.App. April 25, 2008); lv. den. 482
Mich. 1185, 758 N.W.2d 562 (2008).
2009, petitioner filed a petition for writ of habeas corpus.
This Court granted petitioner a conditional writ of habeas
corpus, finding that petitioner was denied his right to the
effective assistance of appellate counsel with respect to his
appeal of right with the Michigan Court of Appeals due to
appellate counsel's failure to file an appeal of right in
Case # 03-193604-FC and the trial court's failure to
properly advise petitioner of his right to appeal in Case #
03-192752-FH. This Court ordered that petitioner's appeal
of right be reinstated in both cases within sixty days of the
Court's order and that the Michigan Court of Appeals
undertake to appoint appellate counsel to represent
petitioner. See Vance v. Scutt, No. 2:09-CV-11368;
2012 WL 666520 (E.D. Mich. Feb. 29, 2012).
Sixth Circuit affirmed the conditional grant of a writ of
habeas corpus with respect to Case No. 03-193604-FC and
ordered that petitioner's state appellate court rights be
restored with respect to that case. The Sixth Circuit,
however, reversed the grant of the writ in Case #
03-192752-FH and remanded for further proceedings consistent
with the opinion. Vance v. Scutt, 573 F.App'x.
715 (6th Cir. 2014).
remand, this Court held the petition in abeyance pending the
completion of petitioner's appeal of right in Case No.
03-193604-FC. Vance v. Scutt, No. 2:09-CV-11368,
2014 WL 4192743 (E.D. Mich. Aug. 22, 2014).
conviction in Case No. 03-193604-FC was affirmed following
his new appeal of right, although the case was remanded for
re-sentencing because of an error in the scoring of the
sentencing guidelines. People v. Vance, No. 323408,
2016 WL 3700301 (Mich. Ct. App. Jan. 26, 2016), lv.
den. 499 Mich. 986, 882 N.W.2d 159 (2016). Petitioner
was re-sentenced on September 1, 2016.
October 13, 2016, this Court reopened the case and amended
the caption but denied petitioner's motion for the
appointment of counsel. The Court granted petitioner an
extension of time to file an amended petition. On January 30,
2017, this Court granted petitioner's motion to amend his
habeas petition and ordered that the amended petition be
served upon respondent. Respondent filed an answer on July 5,
2017 and petitioner filed a reply brief on August 28, 2017.
amended habeas petition, petitioner seeks relief on twelve
separate grounds: (1) the trial judge erred in consolidating
the two cases for trial, (2) the similar acts evidence was
more prejudicial than probative and this denied petitioner
his constitutional right to a fair trial, (3) petitioner was
denied his constitutional right to present a defense because
the trial court prevented him from impeaching the testimony
of one of the complainants, (4) petitioner was denied a fair
trial by introduction of two prior consistent statements when
there was no claim of recent fabrication, (5) cumulative
error, (6) the trial court erred in scoring OV-8, OV-9 and
OV-11 of the Michigan Sentencing Guidelines, (7) petitioner
was denied a fair trial because of prosecutorial misconduct,
(8) The trial court erred in scoring 15 points for OV-10 of
the Michigan Sentencing Guidelines, (9) the trial court
violated the U.S. and Michigan Constitutions in sentencing
petitioner to a prison term of 15 to 50 years on the CSC I
convictions. (10) petitioner was denied his due process and
right to a fair trial by the prosecutor's misconduct in
improperly impugning petitioner's character and veracity
and improperly vouching for the credibility of the
complainants' during closing argument and defense counsel
was ineffective for failing to object, (11) petitioner was
denied his constitutional right to due process of law and a
fair trial when the court failed to state its reasons for
denying trial counsel's motion for a directed verdict,
and (12) the trial court committed reversible error when it
assessed attorney fees in an amended order.
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 Supreme Court of the United States;
(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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000).
“unreasonable application” occurs when “a
state court decision unreasonably applies the law of [the
Supreme Court] to the facts of a prisoner's case.”
Id. at 409. A federal habeas court may not
“issue the writ simply because that court concludes in
its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously
or incorrectly.” Id. at 410-11. “[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.” Harrington v. Richter,
562 U.S. 86, 101 (2011)(citing Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order
to obtain habeas relief in federal court, a state prisoner is
required to show that the state court's rejection of 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.” Harrington, 562 U.S. at 103. A
habeas petitioner should be denied relief as long as it is
within the “realm of possibility” that fairminded
jurists could find the state court decision to be reasonable.
See Woods v. Etherton, 136 S.Ct. 1149, 1152
Claims # 1 and # 2. The misjoinder and “other acts
first claim, petitioner contends that he was denied a fair
trial when the trial court improperly consolidated
petitioner's two separate criminal sexual conduct cases
that involved two different victims into one trial. In his
related second claim, petitioner argues that the trial judge
erred in ruling that evidence of petitioner's sexual
assaults against each of the victims would be admissible
under M.R.E. 404(b) at a trial involving the other victim,
had each of the victims been tried separately.
trial judge prior to trial granted the prosecution's
motion to consolidate the two cases into one trial, on the
ground that the cases involved two minor children that took
place during “a somewhat similar time period.”
The judge further noted that some of the police officers who
would be testifying had been involved in both cases. The
judge further granted the prosecution's motion to
introduce evidence of the separate sexual assault charges
regarding each victim as “prior bad acts”
evidence pursuant to M.R.E. 404(b), namely, to show ...