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Trotter v. Berghuis

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

November 30, 2017

GREGORY TROTTER, Petitioner,
v.
MARY BERGHUIS, Respondent.

          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 PAUPERIS

          Denise Page Hood Chief Judge

         This is 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.

         The 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 DNA testing.

         The 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.

         I. Background

         The 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).

         Following 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.

         Petitioner 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, § 17?
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?

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. Trotter, 2013 WL 1165257.

         Petitioner 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) (Table).

         Petitioner 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 neglected.
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, § 17.

         The 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. ...


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