United States District Court, W.D. Michigan, Southern Division
HONORABLE ROBERT J. JONKER JUDGE
REPORT AND RECOMMENDATION
KENT UNITED STATES MAGISTRATE JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Kendrick Deon Stanton is
incarcerated with the Michigan Department of Corrections at
the Michigan Reformatory (RMI) in Ionia, Michigan. On
December 15, 2009, a Saginaw County Circuit Court jury found
Petitioner guilty of torture, Mich. Comp. Laws § 750.85,
unlawful imprisonment, Mich. Comp. Laws § 750.349b,
felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and felony firearm, Mich. Comp. Laws §
750.227b. On January 12, 2010, the court sentenced Petitioner
to concurrent prison terms of 375 months to 50 years for the
torture conviction, 150 months to 30 years for the unlawful
imprisonment conviction and 43 months to 10 years for the
firearm possession conviction. Petitioner was also ordered to
serve two years of imprisonment for felony firearm,
consecutive to his other sentences.
has filed a habeas corpus petition raising four grounds for
relief, as follows:
I. Did the trial court err when it found that the rape-shield
statute prevented the admission of any evidence of Ms.
Hahn's previous sexual relationships with Mr.
Stanton's co-defendants, in violation of his
constitutional right to confrontation.
II. Did the trial court err when it overruled the hearsay
objection made by trial counsel to testimony from the
complainant's mother as to an out-of-court statement by
the complainant that corroborated her trial allegations.
III. Mr. Stanton was denied a fair trial by the admission of
testimony from a witness who was not qualified to testify as
an expert because the defense was not allowed to voir
dire the witness, and the jury was not made aware of the
witness' qualification to testify as an expert.
IV. Mr. Stanton was denied his right to the effective
assistance of counsel on appeal in violation of his due
process of law here counsel failed to effectively argue issue
on appeal that had merit in addition to those that were
ECF No. 1, PageID.4-8.) Respondent has filed an answer to the
petition (ECF No. 10) stating that the grounds should be
denied because they all lack merit and habeas issue III has
been procedurally defaulted. Upon review and applying the
standards of the Antiterrorism and Effective Death Penalty
Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA), I find
that the grounds lack merit. Accordingly, I recommend that
the petition be denied.
According to the victim
October 22, 2008, Shari Hahn, Petitioner's former
girlfriend, went with a group of friends to the home of
Petitioner's new girlfriend, Valerie Ruiz, at 409 Saginaw
St, Saginaw, Michigan. (Trial Tr. I, ECF No. 11-12,
PageID.506-508.) She arrived at Ms. Ruiz's home with
Dezarick Henderson, Glenn O'Neal, and Oscar (last name
unknown). (Id., PageID.508.) Petitioner, Jennifer
Thompson, Kijuan Tolliver, and Valerie Ruiz arrived later.
point in the evening, Ms. Hahn stepped in some dog feces in
the home. She inadvertently tracked it around the house.
(Id., PageID.508-509.) Petitioner was angry at Ms.
Hahn for messing up the carpets. (Id., PageID.509.)
Later in the evening, Petitioner informed the group that some
money and a ring belonging to Ms. Ruiz were missing.
(Id.) Petitioner took Ms. Hahn into a different room
and directed her to remove her clothing. (Id.) He
searched the clothing, but did not discover the money or the
ring. (Id., PageID.510.) Ms. Hahn got dressed and
returned to the living room. (Id.)
Hahn sat in the living room, Petitioner picked up a telephone
book and hit her across the head a few times. (Id.)
Ms. Hahn attempted to dial 9-1-1, but Petitioner took her
cell phone. (Id.) Ms. Hahn attempted to leave, but
she only was a little ways outside the home before O'Neal
dragged her back into the house. (Id.,
PageID.510-511.) Shortly thereafter, Jennifer, Oscar, and
Kijuan left, leaving Ms. Hahn with only Petitioner,
Henderson, and O'Neal. (Id., PageID.511.)
threw Ms. Hahn to the floor and dragged her by her hair to a
bedroom. (Id.) Petitioner again directed Ms. Hahn to
disrobe. (Id.) She was struck with a belt and a
broomstick and threatened with a steak knife and a gun.
(Id., PageID.512-513.) Petitioner poked Ms. Hahn
with the knife until she bled. (Id.) Petitioner
sprayed a chemical substance, waterproofer for shoes, into
her eyes. (Id.) O'Neal and Henderson held Ms.
Hahn down as Petitioner penetrated her vagina with the
broomstick. (Id., PageID.513.) Later, Petitioner
tried to suffocate her with a plastic bag and tried to choke
her. (Id., PageID.513-514.)
Petitioner was done, he told O'Neal and Henderson they
could do what they wanted with Ms. Hahn. (Id.,
PageID.514-515.) O'Neal penetrated Ms. Hahn orally with
his penis while Henderson penetrated her vagina from behind
with his penis. (Id., PageID.515.) After a time they
switched positions. (Id.)
they left Ms. Hahn alone in the room. (Id.) She
stayed until about noon the next day. (Id.,
PageID.516-517, 527.) At that point the men permitted her to
leave. (Id., PageID.517) She rode her bicycle to a
telephone and called her mother. (Id.) Her mother
picked her up and took her home, called the police, and then
took Ms. Hahn to the hospital. (Id.)
According to Petitioner
testimony was consistent with Ms. Hahn's with respect to
many of the events of the evening, including Ms. Hahn's
claim that Petitioner hit her with the telephone book, the
broomstick, and one or more belts. (Trial Tr. III, ECF No.
11-14, PageID.617-624.) Petitioner denied dragging Ms. Hahn
into the backroom by her hair, threatening her with a gun or
a knife, poking her with a knife, or penetrating her vagina
with the broomstick. (Id., PageID.625, 629-630.)
Petitioner denied holding her in the house against her will.
(Id., Page 628.) Petitioner also claimed that any
sexual activity between O'Neal, Henderson, and Ms. Hahn
was consensual. (Id., PageID.626-628.)
jury also heard testimony from several other witnesses. Ms.
Hahn's mother testified that she picked up Ms. Hahn after
her phone call, spoke with her about the events of the prior
evening, called the police, and took her to the hospital.
(Trial Tr. II, ECF No. 11-13, PageID.556-558.) Several police
officers testified. Officer Frederick Mata testified that he
was dispatched to the hospital to meet Ms. Hahn.
(Id., PageID.559.) Based on what she told him, he
obtained and executed a search warrant for the home at 409
Saginaw. (Id.) Other officers testified regarding
the search of the home and evidence seized, the CSC kit, and
the collection of Petitioner's fingerprints.
(Id., PageID.561-569.) The jury heard from a latent
print examiner from the Michigan State Police laboratory that
Petitioner's prints were on the broomstick.
(Id., PageID.570-571.) Michigan State Police
laboratory civilian employee Jodi Corsi testified regarding
the collection of DNA samples from the CSC kit.
(Id., PageID.572-573.) On cross- examination,
Petitioner's counsel asked Ms. Corsi whether she tested
the knife or gun for the presence of blood. (Id.,
PageID.573.) She testified that she did not find blood on
either item. (Id.) On redirect, Ms. Corsi testified
further that washing the knife would decrease the possibility
of finding evidence on it. (Id., PageID.574.)
State Police laboratory employee Shannon Aho testified
regarding the DNA analysis of the evidence collected.
(Id., PageID.574-577.) She reported that DNA taken
from the threaded end of the broom stick was likely Ms.
Hahn's. (Id., PageID.576.) Finally, Registered
Nurse Mary Conley testified regarding her examination of Ms.
Hahn and her collection of the CSC kit evidence from Ms.
Hahn. On cross-examination, Petitioner's counsel asked
Ms. Conley to differentiate, in the pictures from her
examination of Ms. Hahn, older injuries from recent injuries.
(Id., PageId.581) She concluded that the
bruising appeared recent. (Id.,
respect to each of the principal charges (torture,
first-degree CSC, and kidnapping), the trial court instructed
the jury on lesser included offenses as well as the main
charge. With respect to torture, the court also provided an
instruction on assault with intent to do great bodily harm
less than murder, Mich. Comp. Laws § 750.84. (Trial Tr.
IV, ECF No. 11-15, PageID.672.) With respect to first degree
CSC, the court also provided an instruction on third-degree
CSC, Mich. Comp. Laws § 750.520d. (Id.,
PageID.673.) With respect to kidnapping, the court also
provided an instruction on unlawful imprisonment, Mich. Comp.
Laws § 750.349b. (Id., PageID.673-674.)
jury's verdict suggests that they believed Ms. Hahn at
least in part. They found Petitioner guilty of torture, felon
in possession of a firearm, and felony firearm.
(Id., PageID.676.) But, it appears they believed
Petitioner with regard to some of his testimony because they
found Petitioner not guilty of first-degree criminal sexual
conduct, even though Ms. Hahn's DNA was found on the
threaded end of the broomstick, and reduced the kidnapping
charge to unlawful imprisonment. (Id.) On January
12, 2010, the trial court sentenced Petitioner to the terms
of imprisonment outlined above. (Sentencing Tr., ECF No.
with the assistance of appointed counsel, filed an appeal
with the Michigan Court of Appeals raising two issues: habeas
issues I and II above, regarding the trial court's
refusal to permit the admission of evidence regarding Ms.
Hahn's previous sexual relationships with O'Neal and
Henderson under the Rape-Shield statute, and permitting the
admission of hearsay testimony from Ms. Hahn's mother
regarding what Ms. Hahn told her mother about the incident.
(Appeal Br., ECF No. 11-19, PageID.747.) By unpublished
opinion dated November 22, 2011, the Michigan Court of
Appeals affirmed the trial court as to both issues. (Mich.
Ct. App. Op., ECF No. 11-19, PageID.740-743.) Petitioner
raised the same two issues in his application for leave to
appeal in the Michigan Supreme Court. (Appl. for Leave to
Appeal, ECF No. 11-20, PageID.802.) That court denied leave
by order entered April 23, 2012. (Mich. Ord., ECF No. 11-20,
did not file a petition for certiorari in the United States
Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he
returned to the trial court and filed a motion for relief
from judgment raising two new issues: habeas issues III and
IV, regarding the erroneous admission of opinion testimony
from a lay witness and the ineffective assistance of
appellate counsel for failing to raise that issue on direct
appeal. (Mot. for Relief from J., ECF No. 11-17, PageID.707.)
The trial court denied relief on the merits. (Saginaw Cty.
Cir. Ct. Ord., ECF No. 11-18.) Petitioner sought leave to
appeal that decision in the Michigan Court of Appeals and the
Michigan Supreme Court. (Pro Per Appl. for Leave to Appeal,
ECF No. 11-21, PageID.834-840; Pro Per Appl. for Leave to
Appeal, ECF No. 11-22, PageID.892-899.) Those courts denied
leave by orders entered July 3, 2013 and December 23, 2013,
respectively. (Mich. Ct. App. Ord., ECF No. 11-21,
PageID.829; Mich. Ord, ECF No. 11-22, PageID.891.)
filed this habeas petition on June 27, 2014. (Pet., ECF No.
AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372');">135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the “clearly established”
holdings, and not the dicta, of the Supreme Court.
Williams v. Taylor, 529 U.S. 362, 412 (2000);
Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir.
2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Lopez v. Smith, 135 S.Ct. 1, 3
(2014); Bailey, 271 F.3d at 655. Moreover,
“clearly established Federal law” does not
include decisions of the Supreme Court announced after the
last adjudication of the merits in state court. Greene v.
Fisher, 565 U.S. 34 (2011). Thus, the inquiry is limited
to an examination of the legal landscape as it would have