Robinson v. Gidley

          OPINION AND ORDER DENYING THE HABEAS PETITION, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          Paul D. Borman United States District Judge.

         I. Introduction

         Michigan prisoner Augustus Robinson (“Petitioner”) has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his two first-degree criminal sexual conduct convictions which were imposed following a jury trial in the Kent County Circuit Court. Petitioner was sentenced, as a third habitual offender, to concurrent terms of six to 30 years imprisonment. In his pleadings, Petitioner raises claims concerning the late endorsement of two witnesses, the alleged absence of counsel during the pre-trial period, the effectiveness of trial counsel, the trial court's refusal to allow him to represent himself, the exclusion of certain evidence, his restraint in shackles before the jury, and the trial court's factual findings regarding the use of shackles. For the reasons stated herein, the Court finds that his claims lack merit and denies the habeas petition. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

         II. Facts and Procedural History

         Petitioner's convictions arise from his conduct in performing oral sex upon the 15-year-old daughter of his former girlfriend at the girl's residences in Grand Rapids, Kent County, Michigan in 2008 and 2009. Defense counsel on direct appeal summarized the trial testimony as follows:

IT claimed to know the complaining witness, TJ, since the eighth grade. She visited TJ often and at one point slept at her house nearly every other weekend. [Trial 4/19/11, p 34-35]. IT claimed Mr. Robinson was always at the house during their visits. [Trial 4/19/11, p 37]. According to IT, she awakened one night and saw Mr. Robinson standing in the doorway of TJ's bedroom. [Trial 4/19/11, p 39-40]. Although it was dark, she claimed to know with certainty that it was Mr. Robinson in the doorway and not one of TJ's other relatives. [Trial 4/19/11, p 40-41]. She thought his conduct was “weird, ” but rolled over and went back to sleep. IT claimed that because she sleeps heavily, she was not aware of anything unusual happening during the rest of the night. [Trial 4/19/11, p 42-43].

TJ was sixteen at the time of trial. [Trial 4/19/11, p 58]. She testified that her family once lived at a house located on Hamilton Street, and that she resided there with her mother, four brothers and Mr. Robinson. She believed she was fifteen years-old and in the eighth grade when they lived at that house. [Trial 4/19/11, p 58]. According to TJ, she and her mother did not have a positive relationship at all during that time. [Trial 4/19/11, p 62]. She claimed that one night while her mother was out and she and IT were asleep in the same bed in her room, Mr. Robinson knelt down and tapped her on the shoulder. When she awakened, he asked her to come downstairs for a minute because he needed to show her something. [Trial 4/19/11 62-63]. TJ testified that she was not fully awake and inquired of her mother's whereabouts, but claimed that Mr. Robinson repeated his request. She claimed that he then rubbed her leg, pulled down her pants and performed oral sex on her. [Trial 4/19/11 63]. TJ did not try to alert IT (who was directly next to her), and instead pushed Mr. Robinson away. She testified that she could smell liquor on Mr. Robinson's breath, and that when he was finished he asked TJ if she liked it. [Trial 4/19/11, p 64]. According to her, he then left the room and went back downstairs. TJ did not mention the incident to her mother, based on her belief that her mother would be angry and side with Mr. Robinson, or that he would try to have another person harm her. [Trial 4/19/11, p 67, 88].

Their family eventually moved to an apartment on Hidden Creek Circle Drive. TJ expressed confusion over whether she was fifteen or sixteen at the time, but believed that the next encounter occurred the following spring, in March or May. [Trial 4/19/11, p 69]. According to her, she arrived home around six o'clock in the evening. Her mother was visiting a friend, and her younger brothers were outside playing. She claimed that she and Mr. Robinson were in the house alone, when he approached her and asked if she remembered what happened last time. TJ did not respond. Based on his request, however, she smoked marijuana with Mr. Robinson and then headed to her room to do laundry. When she turned to leave the room again, she claimed that Mr. Robinson was standing right behind her. She went to check on her brothers, but he stopped her, locked the door, picked her up, and took her to her room. Mr. Robinson forced her to lay down on the bed, removed her jeans, and performed oral sex on her again. [Trial 4/19/11, p 70-71]. She began to push him off of her because she heard her brothers ringing the doorbell. He finally let her get up and she went to let them in. [Trial 4/19/11, p 72].

According to TJ she was only compelled to tell her mother about the alleged assaults when she overheard Calandra and Mr. Robinson discussing sending her to juvenile boot camp. She was angry because Mr. Robinson was encouraging the move, and her mother was agreeing to it. She turned up her music and told her mother “I'm not the only one keepin' secrets around here.” TJ began to cry and disclosed the alleged incidents to her mother at that time. [Trial 4/19/11, p 72]. Her mother ordered Mr. Robinson to leave, and the police came to the house the same night. [Trial 4/19/11, p 73]. On cross-examination, TJ admitted that she had been lying to her mother about various things, and that her mother doubted her truthfulness as a result. [Trial 4/19/11, p 76].

Calandra Jones claimed she could not recall the exact year - 2007 or 2008 -- that she and Mr. Robinson began dating. [Trial 4/19/11, p 95]. She noted that right before TJ's birthday, her daughter disclosed the alleged sexual abuse. Nevertheless, she waited ten to fourteen days before she contacted the police. [Trial 4/19/11, p 96-97, 100]. What stood out to Calandra was TJ's claim that Mr. Robinson said “I want to show you something.” According to her, that was his way of indicating to Calandra that he was interested in sex. [Trial 4/19/11, p 98]. Initially, Calandra lashed out and looked at her daughter as the other woman. [Trial 4/19/11, p 99].

When she confronted Mr. Robinson with the information, she claimed he did not deny it. He merely said, “you're going to believe her.” [Trial 4/19/11, p 100].

Over defense objection, the prosecution presented testimony from CJ, TJ's younger brother. The basis for the objection was that TJ and another witness, Tom Cottrell, were belatedly endorsed by the prosecution - a fact that the government readily acknowledged. [Trial 4/20/11, p 4-6]. Nevertheless, they contended that the amendment was justified given the evolving nature of Mr. Robinson's defense, which was initially based on Mr. Robinson having an alibi. (Appendix A, Motion for Admission of Late Endorsed Witnesses). They argued that because counsel attacked the reporting delay in opening argument, they needed to proffer the testimony of Cottrell as an expert witness to rebut that contention. No excuse was offered as it related to CJ, but the Court was not persuaded that the defense should be surprised by his testimony. Ultimately, Judge Sindt agreed with the prosecution and allowed both witnesses to appear. [Trial 4/20/11, p 10-16].

According to CJ, who was twelve at the time of the trial, he recalled a day when Mr. Robinson directed he and his brothers to stop watching television and to go outside. They all complied, but CJ eventually had to use the bathroom so he headed back in. He found that the door was locked and he thus had to ring the bell. Mr. Robinson came to the door after two or three minutes, which struck him as odd since CJ did not have a key and was not accustomed to the door being locked while they were outside. [Trial 4/20/11, p 19-21].

The final prosecution witness, Tom Cottrell, testified as an expert in the field of “child sexual abuse and offender behavior, ” ostensibly to rebut the defense suggestion that TJ's reporting delay indicated untruthfulness. [Trial 4/20/11, p 29]. On this point, he testified that reporting is extremely common in child sexual abuse cases and stems from a variety of circumstances, including the possibility that a child feels threatened; that disclosure puts another person at risk; that they cannot anticipate the family's response; or the feeling that the child can endure it on their own. [Trial 4/20/11, p 31]. The questioning went far afield of this subject, however, as Mr. Cottrell explained (1) why an offender would feel empowered by engaging in sex abuse in front of a third person without being discovered; (2) why a child sex abuse victim might comply with the demands of the perpetrator because of feeling threatened, complicit, or joyful about having the attention; (3) why a child sex abuse victim might respond to the behavior with defiance; (4) and why it is common for the mother of a sex abuse victim to view her daughter as “the other woman.” [Trial 4/20/11, p 32-36]. He also noted that generally speaking, children are trained to follow the rules given to them by adults. [Trial 4/20/11, p 38].

Mr. Robinson elicited testimony from Chiquita Braggs on his behalf. She noted that there came a time when it was very hot in the spring or summer of 2009 when Mr. Robinson approached her in need of a place to live. He moved in with her for a period of time, and then went on to stay with his sister in Lansing. Ms. Braggs believed that this likely occurred in June or July of 2009. [Trial 4/20/11, p 42-46]. Trial counsel asked Ms. Braggs to describe her impression of Mr. Robinson's character and the kind of person he was, and she replied that he was “a nice person for the most part.” She had no concerns with him being around her adolescent girls without supervision. [Trial 4/20/11, p 46]. She offered no testimony about his character for truthfulness, peacefulness or otherwise. Nevertheless, on cross-examination, the prosecution attempted to impeach the witness's knowledge by informing her, in front of the jury, that Mr. Robinson had a past conviction for unarmed robbery. [Trial 4/20/11, p 56]. No limiting instruction was requested or received at the end of the proofs to properly instruct the jury on how to evaluate the back-door introduction of Mr. Robinson's criminal record.

Mr. Robinson's sister, Rosa Robinson, was the last witness to testify. She noted that Mr. Robinson came to stay with her twice - once to house-sit in May of 2009, and later in July of 2009 for less than a month. Thereafter, he went on to live with her sister, Lucille and remained in the Lansing area. [Trial 4/20/11, p 64].

         Defense Counsel's App. Br. pp. 1-6 (footnotes omitted, edited to use minors' initials).

         At the close of trial, the jury convicted Petitioner of two counts of first-degree criminal sexual conduct. The trial court subsequently sentenced him, as a third habitual offender, to concurrent terms of six to 30 years imprisonment on those convictions.

         Following sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented in his habeas petition. The Michigan Court of Appeals remanded the case to the trial court to allow Petitioner to file a motion for a new trial and for the trial court to conduct an evidentiary hearing to determine whether Petitioner was in restraints while the jury was present in the courtroom and, if so, whether any of the deliberating jurors saw them. The trial court held the evidentiary hearing and denied the motion for a new trial because the testimony of Petitioner's counsel and court personnel did not support Petitioner's claim that he was restrained in shackles in front of the jury in the courtroom. People v. Robinson, No. 10-02818-FC (Kent Co. Cir. Ct. Oct. 15, 2012). The Michigan Court of Appeals thereafter ruled that Petitioner's claims lacked merit and affirmed his convictions. People v. Robinson, No. 304878, 2013 WL 3814352 (Mich. Ct. App. July 23, 2013) (unpublished). Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied, People v. Robinson, 495 Mich. 915, 840 N.W.2d 353 (2013), as was his motion for reconsideration. People v. Robinson, 495 Mich. 997, 845 N.W.2d 97 (2014). Petitioner also filed a petition for a writ of certiorari with the United States Supreme Court, which was denied. Robinson v. Michigan, ___ U.S. ___, 135 S.Ct. 272 (2014).

         Petitioner thereafter filed his federal habeas petition raising the following claims:

I. The trial court violated Petitioner's right to a fair trial by allowing the prosecutor to add a new expert and corroborating witness on the Friday before trial.

II. Petitioner is entitled to a new trial where defense counsel provided constitutionally ineffective assistance by eliciting irrelevant and unnecessary character testimony and opening the door for the prosecution to inform the witnesses and the jury of Petitioner's unarmed robbery conviction.

III. The trial court violated Petitioner's Sixth Amendment right to represent himself at trial when it refused to let Petitioner represent himself because he had not graduated from law school and passed the bar.

IV. Petitioner was denied his Sixth Amendment right to effective assistance of trial counsel by his trial lawyer's failure to visit him in jail during the eight months before trial after she moved to withdraw.

V. Petitioner was denied his Sixth Amendment right to effective assistance of trial counsel by his trial lawyer's failures including:

a. Failure to impeach TJ with her statement to police and preliminary examination testimony;

b. Failure to impeach IT with her prior statement to police that she and TJ were sleeping in separate beds, not in the same bed as they both testified at trial;

c. Failure to impeach IT with her prior inconsistent statements about the date, where she told police the events she witnessed happened in 2009 but testified that they happened in 2008;

d. Failure to point out to the jury the inconsistencies between the stories of TJ and her brother, CJ.

e. Failure to investigate whether TJ had a negative urinalysis drug result during March or April 2009, to refute her testimony that she smoked marijuana with defendant the day she claimed that he assaulted her in March 2009;

f. Failure to object when the prosecutor elicited from Calandra Jones that defendant had been incarcerated;

g. Asking Rosa Robinson whether defendant had been in legal trouble and her replying “aggravated assault.”

VI. Petitioner was denied a fair trial in violation of the Fourteenth Amendment when the Court allowed the prosecution to present evidence that Petitioner and Calandra Jones had discussed sending TJ to a juvenile “boot camp” but would not let the defense present evidence of why.

VII. Petitioner was denied a fair trial under the Fourteenth Amendment when he was brought before the jury in shackles.

VIII. The trial court's findings of fact are clearly erroneous and they are not what the Michigan Court of Appeals ordered, which was to determine whether the jurors saw Petitioner in restraints.

         Respondent has filed an answer to the petition contending that it should be denied because the claims lack merit and the shackles claim is procedurally defaulted. Petitioner has filed a reply to that answer.

         III. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of review that federal courts must use when considering habeas petitions brought by prisoners challenging their state court convictions. The AEDPA provides in relevant part:

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 ...