Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Vance v. Klee

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

September 21, 2017

MICHAEL D. VANCE, Petitioner,
v.
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

         Michael 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 PREJUDICE.

         I. Background

         Petitioner 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.[1] 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).

         Cheryl 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).

         K.V. 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 hands.

         K.V. 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).

         K.V.'s 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).

         K.V.'s 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).

         Petitioner's 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).

         Petitioner testified in his own behalf and denied sexually assaulting either victim. (Tr. 6/10/2004, pp. 31-32, 38, 45, 50-56, 60-61, 77-81).

         Petitioner's 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).

         Petitioner 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).

         In 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).

         The 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).

         On 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).

         Petitioner's 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.

         On 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.

         In his 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.

         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 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.

         A 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).

         An “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 (2016).[2]

         III. Discussion

         A. Claims # 1 and # 2. The misjoinder and “other acts evidence” claims.

         In his 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.

         The 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.