United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
G. Edmunds United States District Judge.
Chism (“Petitioner”), has filed a pro se
petition for a writ of habeas corpus under 28 U.S.C. §
2254. Petitioner is incarcerated at the Chippewa Correctional
Facility in Kincheloe, Michigan. He challenges his
convictions for three counts of first-degree criminal sexual
conduct, asserting that the trial court violated his due
process rights in two ways: (1) by denying a motion to
suppress his confession; and (2) by denying a motion for
mistrial. Respondent, through the Attorney General's
Office, has filed an answer in opposition to the petition,
arguing that Petitioner's claims are meritless and, as to
the mistrial claim, procedurally defaulted. For the reasons
set forth below, the Court denies the petition and denies a
certificate of appealability.
convictions arise from his sexual conduct with a female piano
student who was between 11 and 13 years of age.
Michigan Court of Appeals summarized the facts in this case
Defendant was employed as a piano instructor and the victim
began taking piano lessons from him when she was eleven years
old and stopped the lessons when she was under the age of 13.
She testified that a couple of months after the start of the
lessons defendant began putting his hand on her knee and then
continued moving it higher up her leg. Later, defendant began
to use his left hand to reach inside her pants, push away her
underwear, and move his finger in between the lips of her
vagina. She further testified that defendant touched her
breasts on one occasion. The victim never protested the
touching due to being afraid of getting hurt by defendant.
She also did not mention the sexual assaults to her parents,
but later on told a couple of her friends, who contacted the
high school counselor and an investigation began.
People v. Chism, No. 313580, 2014 WL 667524, at *1
(Mich. Ct. App. Feb. 18, 2014).
the investigation, Detective Sergeant Michael Crum of the
Berkley Police Department called Petitioner, asking him to
come to the station to talk about an unspecified allegation.
Petitioner, who was around 50 years old at the time, drove
himself to the Berkley Police Station and met with Sergeant
Crum in an interview room. The entire interview was
videotaped. Within 28 minutes, Petitioner confessed to
sexually assaulting the victim. The entire interview lasted
under an hour. When questioning Petitioner, Sergeant Crum
stated the following:
Do we charge [you] with, you know, 20 different felonies that
have 200 years in prison time, and I hate to talk about a
thing like that, or do we charge [you] with a misdemeanor?
(Dkt. 10-3 at 8.) Sergeant Crum also indicated that
he was doing his best to keep the situation off of Fox 2
news, and that Petitioner would be facing a “freight
train” if he continued to ignore the matter.
(Id. at 9 and 13-14.)
Oakland County Circuit Court held a Walker hearing
on August 15, 2012, to determine the admissibility of the
videotaped confession. The Court concluded that, under the
totality of the circumstances, Petitioner's confession
was voluntary and the confession was admissible.
the trial, Petitioner's counsel again argued that the
videotaped confession should be suppressed. When the Court
made it clear that the confession could be played for the
jury and asked whether there were certain parts that should
be kept out, Petitioner's counsel stated: “if
you're going to play it, play the whole thing.”
(Dkt.10-6 at 2.) The prosecutor played the video for the
jury, muting only one section that referred to a polygraph.
After seeing the video, Petitioner's counsel moved for a
mistrial because Sergeant Crum indicated during the interview
that he believed the victim. The Court denied the motion, but
agreed to a limiting instruction.
the three-day trial, the jury convicted Petitioner of three
counts of first-degree criminal sexual conduct (victim under
12 years old, defendant 17 or older). The Court sentenced him
to concurrent sentences of 25 to 50 years' imprisonment
for his three convictions.
filed an appeal of right in the Michigan Court of Appeals,
arguing that (i) his confession was not voluntary and the
trial court erred in denying his motion to suppress and (2)
that the trial court abused its discretion in denying his
motion for mistrial. The Michigan Court of Appeals affirmed
the conviction. Chism, 2014 WL 667524. Petitioner
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. Chism, 497 Mich. 854 (2014).
then filed a petition for writ of habeas corpus, which this
Court sua sponte dismissed without prejudice because
the petition contained unexhausted claims, giving him 30 days
to move to re-open the case to proceed on only his exhausted
claims. Chism v. Woods, No. 15-cv-13237, 2015 WL
5590473 (E.D. Mich. Sept. 23, 2015). Instead, Petitioner
filed the instant petition for habeas relief, raising only
the following exhausted claims:
I. The trial court violated Petitioner's due process
rights by denying the motion to suppress his confession; and
II. The trial court violated his due process rights and right
to a fair trial by denying his motion for mistrial.
petitioner's claims are reviewed against the standards
established by the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214
(“AEDPA”). The AEDPA provides:
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 ...