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Mullins v. McKee

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

January 9, 2018

DEANDRE MULLINS, Petitioner,
v.
KENNETH MCKEE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          ARTHUR J. TARNOW, UNITED STATES DISTRICT JUDGE.

         Petitioner Deandre Mullins, a prisoner in the custody of the Michigan Department of Corrections, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his convictions for four counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b, assault with intent to rob while armed, Mich. Comp. Laws § 750.89, and first-degree home invasion, Mich. Comp. Laws § 750.110a(2). The petition raises six claims for relief. Respondent, through the Attorney General's Office, has filed an answer in opposition to the petition arguing that some of the claims are procedurally defaulted and that all of the claims are meritless. For the reasons discussed, the Court will deny habeas corpus relief.

         I. Background

         Petitioner's convictions arose from the sexual assault of N.G. at her home in Detroit on December 26, 2007. N.G., who was 17 years old, testified that she was awakened by a man standing over her with a knife to her throat. She screamed. He warned her that if she was not quiet he would kill her. He ordered her to take off her pants and underwear, which she did. He then fondled her, performed cunnilingus, forced her to perform fellatio, and raped her. After assaulting her, the man asked her where the money was kept. When she told him that she did not have any money, he threatened her and warned that if she was lying he would return. After the man left, she ran upstairs to her mother's bedroom. N.G.'s mother called the police. N.G. was taken to the hospital where a physical examination was performed and evidence collected for a rape kit. N.G. picked Petitioner from a photographic lineup about a week after the rape. She testified that she was 100% certain that the man depicted in the photograph was the man who raped her.

         Brenda Mullins, Petitioner's mother, testified that she saw news reports in January 2008 about a series of break-ins in Detroit. She saw surveillance video of a break-in at one of the homes. Brenda recognized her son. She encouraged him to turn himself in to police, which he did. Petitioner was arrested. Brenda spoke to her son about the break-ins and rapes. He admitted to her that he had intercourse with the women who accused him of rape, but claimed that the acts had been consensual.

         Cathy Carr was qualified as an expert in forensic biology and forensic DNA analysis. She obtained a DNA profile from the sperm contained in N.G.'s rape kit. She compared that to a DNA sample from Petitioner. Carr testified that the DNA profile obtained from the rape kit samples was consistent with the DNA sample from Petitioner. She further testified that the likelihood of a random match in the African-American population between the two samples was one in 1, 230 quintillion.

         Petitioner testified in his own defense. He testified that at the end of November 2007, he met N.G. while he was walking home. He gave her his phone number. He testified that he and N.G. had consensual sex in her bedroom on December 26, 2007. He denied breaking into her home.

         II. Procedural History

         Petitioner was tried before a jury in Wayne County Circuit Court and convicted of four counts of first-degree criminal sexual conduct, assault with intent to rob while armed, and first-degree home invasion. On May 22, 2008, he was sentenced to concurrent terms of 285 months to 60 years for the first-degree criminal sexual conduct convictions and 285 months to 50 years for the assault with intent to rob while armed conviction, and a consecutive sentence of 141 months to 20 years for the first-degree home invasion conviction.

         Petitioner filed an appeal of right in the Michigan Court of Appeals. Appellate counsel raised a claim that the trial court improperly admitted other acts evidence. Petitioner filed a pro per supplemental brief raising these additional claims: trial court improperly allowed a witness to testify after the witness violated the trial court's sequestration order; trial counsel was ineffective in failing to request a change of venue and failing to move for closure of the courtroom; and the court erred in permitting the prosecution to play a surveillance videotape. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Mullins, No. 286324, 2010 WL 99003 (Mich. Ct. App. Jan. 12, 2010). The Michigan Supreme Court denied leave to appeal. People v. Mullins, 488 Mich. 910 (Mich. 2010).

         Petitioner then simultaneously filed a habeas corpus petition and a motion to hold the petition in abeyance while he exhausted additional claims in state court. The Court granted a stay. Mullins v. McKee, No. 2:11-cv-14678, 2011 WL 5515313 (E.D. Mich. Nov. 9, 2011).

         Petitioner filed a motion for relief from judgment in the trial court. He raised two claims: (i) newly discovered evidence shows that the prosecution presented perjured testimony and withheld exculpatory evidence; and (ii) trial counsel was ineffective in failing to seek an expert in identification. The trial court denied the motion. 3/9/2012 Opinion and Order, ECF No. 12-16. The Michigan Court of Appeals denied Petitioner leave to appeal, People v. Mullins, No. 312358 (Mich. Ct. App. May 30, 2013), ECF No. 12-19. The Michigan Supreme Court also denied leave to appeal. People v. Mullins, 495 Mich. 913 (2013).

         Petitioner returned to this Court and filed a motion to lift the stay and an amended petition. The Court granted Petitioner's motion and ordered Respondent to file an answer to the amended petition. 2/17/15 Order, ECF No. 10. Respondent filed a motion to dismiss on the ground that Petitioner failed to comply with the terms of the stay. ECF No. 11. The Court denied the motion and ordered Respondent to file an answer to the petition. 8/3/15 Order, ECF No. 15. Respondent has filed an answer and the related Rule 5 materials.

         The petition raises these claims:

I. Petitioner is entitled to a new trial where the trial court erred in admission of other acts evidence pursuant to M.R.E. 404(b).
II. One of the prosecution's witnesses sequestered from the courtroom heard evidence from one of the police reports and was allowed by the judge to still take the stand.
III. Petitioner's trial attorney was ineffective in failing to request a change of venue due to pretrial publicity and failing to seek to close the courtroom in order to prevent public exposure to information which, it was hoped, would be ruled admissible, and defendant's face was on the news two days before an impromptu photo lineup was ...

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