United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
D. Borman United States District Judge.
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.
Facts and Procedural History
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
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].
Counsel's App. Br. pp. 1-6 (footnotes omitted, edited to
use minors' initials).
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
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).
thereafter filed his federal habeas petition raising the
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.
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.
Standard of Review
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 ...