United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
J. TARNOW, UNITED STATES DISTRICT JUDGE.
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.
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.
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
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
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.
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.
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
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).
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).
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.
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
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