United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING AMENDED PETITION FOR
WRIT OF HABEAS CORPUS AND, (2) DENYING CERTIFICATE OF
APPEALABILITY, AND (3) DENYING PERMISSION TO APPEAL IN FORMA
Page Hood Chief Judge
a habeas case brought by a Michigan prisoner under 28 U.S.C.
§ 2254. Gregory Trotter (“Petitioner”), was
convicted after a jury trial in the Wayne Circuit Court of
first-degree criminal sexual conduct, Mich. Comp. Laws §
750.520b; kidnapping, Mich. Comp. Laws § 750.349;
second-degree criminal sexual conduct, Mich. Comp. Laws
§ 750.520c; and unarmed robbery, Mich. Comp. Laws §
750.350. Petitioner was sentenced to concurrent terms for his
convictions, the longest of which is a 35 to 60 year sentence
for his first-degree criminal sexual conduct conviction.
amended petition asserts fourteen grounds for relief: (1)
Petitioner was denied a fair trial by admission of
identification evidence resulting from an unduly suggestive
photograph lineupl; (2) the police violated the Fourth
Amendment by conducting a search of Petitioner's bedroom
and counsel was ineffective for failing to raise an
objection; (3) the prosecutor committed misconduct at trial;
(4) evidence related to Petitioner's buccal swab was
improperly admitted; (5) insufficient evidence was admitted
to sustain the verdict; (6) Petitioner is actually innocent;
(7) Petitioner was denied an opportunity to take a polygraph
exam; (8) the prosecutor withheld exculpatory evidence; (9)
Petitioner was denied his right to counsel at critical stages
of the proceedings; (10) Petitioner was denied the effective
assistance of counsel; (11) Petitioner's sentence was
improperly increased on account of his failure to admit his
guilt; (12) Petitioner was sentenced based on inaccurate
information; (13) the trial court improperly characterized
his petition for DNA testing as a request for successive
post-conviction review; and (14) Petitioner is entitled to
Court finds that Petitioner's claims are without merit
and barred from review by his state court procedural
defaults. Therefore, the petition will be denied. The Court
will also deny Petitioner a certificate of appealability and
deny permission to appeal in forma pauperis.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case stems from the random and violent kidnapping,
forcible rape, and robbery of a 15-year-old girl, who was
held captive for approximately three hours. The assailant did
not attempt to shield his identity during the ordeal, and the
victim identified defendant as the assailant in a photograph
array and at trial. The victim was also able to inform the
police regarding the location of the house, and the room
within the house, where defendant had taken and raped her
after he had abducted the victim from a nearby street. The
owner of the house testified that he had known defendant for
about a year and that defendant had been helping him fix up
houses, including the house where the sexual assault
occurred. The home's owner was making repairs to the
house, but not actually living there, and he testified that
defendant had a bed in the room where the assault took place.
According to the home's owner, defendant would stay in
the house to watch it at nighttime, and he asserted that
defendant was staying at the house during the time that the
kidnapping and rape took place. Furthermore, DNA analysis of
a vaginal swab taken from the victim showed a match with
defendant's DNA. A forensic scientist for the Michigan
State Police testified that the probability of selecting a
random unrelated individual in the African-American
population with the same DNA profile was one in 4.277
quintillion people; there are approximately .77 quintillion
people in the world according to the forensic scientist. The
evidence of defendant's guilt was overwhelming.
People v. Trotter, No. 306458, 2013 WL 116257, at *1
(Mich. Ct. App. Mar. 21, 2013).
his conviction and sentence, Petitioner filed a claim of
appeal in the Michigan Court of Appeals. His brief on appeal
filed by appellate counsel raised the following claims:
I. Whether Defendant was denied due process of law by the
unduly suggestive photographic lineup and the trial court
erred in denying his motion to suppress the identification.
U.S. Const Am XIV.
II. Whether the search was illegal as the homeowner did not
have the authority to consent to the search of
Defendant's bedroom and counsel was ineffective for
failing to move to suppress the evidence obtained as a result
of the illegal search. U.S. Const Am IV.
III. Whether the prosecutor denied Defendant a fair trial by
stating facts not in evidence that constituted inadmissible
hearsay and by using the complainant's prior hearsay
statements to improperly bolster her credibility; counsel was
ineffective in failing to object. U.S. Const Am VI; XIV.
IV. Whether Defendant must be resentenced where the trial
court penalized him at sentencing for failure to admit guilt.
U.S. Const Am V, VI, XIV.
V. Whether Defendant was sentenced on the basis of inaccurate
information in violation of his due process rights. U.S.
Const Am XIV.
also filed his own supplemental pro se brief, raising an
additional two claims in the Michigan Court of Appeals:
I. Whether Defendant received a fair trial where the lack of
an evidence tag failed to make the nexus for a proper
foundation of the buccal swab alleged to have been taken from
Mr. Trotter violated his Fourteenth Amendment right under the
U.S. Const., Amend, XIV and the Mich. Const. Art I, §
II. Whether Mr. Trotter is entitled to a new trial as he was
denied effective assistance of counsel due to defense
counsel's failure to object to the admission of [the
buccal swab] where the prosecution produced inadequate
foundational evidence to justify its admission?
Michigan Court of Appeals affirmed Petitioner's
convictions and sentences in an unpublished opinion.
Trotter, 2013 WL 1165257.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claims that he
raised in the Michigan Court of Appeals. The Michigan Supreme
Court denied the application because it was not persuaded
that the questions presented should be reviewed by the Court.
People v. Trotter, 834 N.W.2d 491 (Mich. 2013)
then filed the instant case and a motion to stay the case so
that he could return to the state courts and exhaust
additional claims. The Court granted the motion. Petitioner
returned to the trial court and filed a motion for relief
from judgment, raising the following claims:
I. There was insufficient evidence to convict Defendant and
his conviction was in violation of his state and federal
rights to due process. U.S. Const. Amend. XIV.
II. Defendant's warrantless arrest was illegal as there
was no probable cause and Defendant was not Mirandized. U.S.
Const, Amends IV, XIV; Mich. Const 1963, Art 1, § 11.
III. Defendant was denied his statutory right to a polygraph
examination. U.S. Const. Amends. V, VI, XIV; Mich. Const.
1963, Art 1, § 17.
IV. The prosecution committed multiple misconducts, denying
Defendant a fair trial, including withholding exculpatory DNA
test results (newly discovered evidence). U.S. Const Am XIV.
V. Defendant was denied his right to counsel at critical
stages of prosecution. U.S. Const Am XIV.
VI. Defendant's U.S. Const Amend VI and XIV rights were
violated when he was denied effective assistance of: (A)
trial counsel for various cumulative errors, and (B)
appellate counsel when obviously strong, critical issues were
VII. Defendant was deprived of his right to due process where
he is actually innocent of the crimes and sentences he stands
convicted. U.S. Const. Amend. XIV; Mich. Const 1963, Art 1,
trial court denied the motion for relief from judgment. It
found that review of Petitioner's new claims was barred
because he failed to demonstrate “actual
prejudice” under Michigan Court Rule 6.508(D)(3). Dkt.