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Gaines v. Washington

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

January 25, 2018


          Anthony P. Patti, Judge.



         When Logan Scott Gaines was a senior in high school, he had sex with a freshman girl. After graduation, Gaines continued to seek out sexual relationships with girls as young as thirteen. Gaines would meet the girls through his work as a high school track coach, or through social media. Gaines' relationships were eventually discovered and they led to criminal charges and convictions.

         Gaines served a term in state prison and is currently on parole.[1] Through counsel, he petitions this Court for a writ of habeas corpus. Gaines attacks the constitutionality of his convictions for several counts of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(a), and several counts of accosting, enticing, or soliciting a child for immoral purposes, Mich. Comp. Laws § 750.145a.


         Gaines' criminal convictions stem from sexual relationships with three minor females.[2]

         He met fifteen-year-old A.W. at a high school party. After the party, Gaines, then eighteen, had sex with her. (R. 7, PID 502.)

         Gaines' relationships with minors continued after he graduated. While in college, Gaines volunteered as a track coach for his old high school. (R. 7, PID 499.) That is how Gaines met C.P. (Id. at 611-12.) She was fourteen at the time. (Id. at 499.) Gaines coached C.P., and despite knowing that C.P. was not old enough to drive, eventually started asking her to send nude photos in exchange for his coaching. (R. 7, PID 613-14.) C.P. sent the photos, and Gaines asked her not to tell anyone about them. (Id. at 613-15.)

         Around the same time, Gaines sought out M.M. (R. 7, PID 590.) M.M. was thirteen when Gaines met her at a barn party. (R. 7, PID 651.) Gaines started to message her through social media. (Id.) About a month into their correspondence, Gaines asked M.M. to send nude photos and M.M. obliged. (R. 7, PID 592.) Eventually the pair arranged to meet at Gaines' house, and on multiple occasions Gaines digitally penetrated her. (R. 7, PID 593-94.) Just as with C.P., Gaines asked M.M. to keep their relationship a secret. (R. 7, PID 598.) But at least once, M.M. brought a friend who witnessed Gaines digitally penetrate M.M. (R. 7, PID 595).

         In time, M.M.'s father discovered the nude photos M.M. sent Gaines and called the police. (R. 7, PID 590.) Initially, Gaines denied ever receiving nude photos. (R. 7, PID 606.) But after police showed him screenshots recovered from M.M.'s phone, Gaines admitted to receiving the images and digitally penetrating M.M. (R. 7, PID 606.)

         Yet at trial, Gaines told the jury a different story. He said he never had sex with A.W., C.P., or M.M. (R. 7, PID 649, 652-53.) And contrary to the testimony of investigators, Gaines also denied digitally penetrating M.M. (R. 7, PID 652-53.) Gaines said it was the girls who first suggested sending pictures. (R. 7, PID 651, 653.) Gaines only persisted in asking once they offered. (R. 7, PID 653.) He also said that he believed that M.M. and C.P. were sixteen at the time. (R. 7, PID 651, 653.)

         The judge consolidated the three cases for trial, and a jury convicted Gaines on four counts of third-degree criminal sexual conduct as well as two counts of accosting a child for an immoral purpose. (R. 1, PID 3-4.) Following his conviction, the judge denied Gaines' motions for a new trial and an evidentiary hearing. People v. Gaines, No. 10-035017-19 FH-3 (Saginaw Cty. Cir. Ct. Oct. 29, 2012). The Michigan Court of Appeals affirmed Gaines' convictions and the Michigan Supreme Court denied leave to appeal. People v. Gaines, 856 N.W.2d 222 (Mich. Ct. App. 2014); lv. den. 861 N.W.2d 29 (Mich. 2015).

         Now, Gaines seeks a writ of habeas corpus. (R. 1.) He raises numerous challenges. In summary, Gaines says the charging documents violated due process; challenges the constitutionality of Michigan's accosting statute; contests the joinder of the three cases for trial; calls into question the sufficiency of the evidence; believes the trial court allowed the jury to consider impermissible evidence; points to instances of prosecutorial misconduct; argues he was compelled to testify; complains of Confrontation Clause violations; questions the effectiveness of trial counsel's assistance; says he was denied a fair trial; contends the judge erroneously instructed the jury; and raises cumulative error. All are meritless.


         The Anti-Terrorism and Effective Death Penalty Act instructs federal courts to give state courts “the benefit of the doubt.” Stewart v. Trierweiler, 867 F.3d 633, 636 (6th Cir. 2017). According to AEDPA, a federal court must defer to a state court's decision “on the merits” unless the decision (1) “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) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C. § 2254(d). But “[w]hen a state court does not address a claim on the merits, . . . ‘AEDPA deference' does not apply and [this Court] will review the claim de novo.” Bies v. Sheldon, 775 F.3d 386, 395 (6th Cir. 2014).



         Gaines' broadest claim for relief challenges the constitutionality of Michigan's accosting statute, Michigan Compiled Laws § 750.145a.[3] Based on Gaines' repeated requests for nude photos of M.M. and C.P., the jury convicted Gaines on two counts of accosting.

         But Gaines says the statute is too vague to allow an ordinary person to understand what conduct is prohibited. (R. 1, PID 97-99.) The statute uses the phrase “immoral act.” Gaines contends that “immoral act” is too broadly phrased to give anyone fair warning. (R. 1, PID 98.) And the statute's failure to give fair warning vests complete discretion in a jury to determine whether someone violates the statute. (Id.) He also thinks “immoral act” leaves the statute so broadly written that it impinges on First Amendment freedoms. (R. 7, PID 99-100.)

         The Michigan Court of Appeals adjudicated this claim on the merits. The state court referenced the dictionary definition of “immoral” to show that an ordinary person would know an “immoral act” is limited to licentious or lascivious acts. Gaines, 856 N.W.2d at 243. And, said the appellate court, both licentious and lascivious mean acts “arousing sexual desire.” Id. So the scope of immoral acts is limited solely to those acts that arouse sexual desire. Id. Thus, the Court of Appeals reasoned, the statute puts an ordinary person on clear notice that asking a child to do something arousing sexual desire could bring criminal charges. Id. The state court likewise rejected Gaines' First Amendment challenge. Because a statute punishing those who ask a child to perform an act arousing sexual desire only targets conduct, the law poses no danger to protected speech. Id. at 244. Because this claim was adjudicated on the merits, § 2254(d) applies.

         First, Gaines disagrees with the state court's analysis of the statute's vagueness. Gaines says the Michigan Court of Appeals unreasonably applied Giaccio v. Pennsylvania, 382 U.S. 399 (1966), City of Chicago v. Morales, 527 U.S. 41 (1999), and Cox v. Louisiana, 379 U.S. 536 (1965). (R. 1, PID 97.) All of these cases apply the general, void-for-vagueness doctrine. The doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357 (1983). The vagueness doctrine also requires “that vagueness challenges to statutes . . . be examined in the light of the facts of the case at hand.” United States v. Powell, 423 U.S. 87, 92 (1975).

         Though Gaines has a point that the statute is broadly written, the Michigan Court of Appeals construed the words “immoral act” to mean “arousing sexual desire.” This federal court, especially when deciding whether to issue a writ of habeas corpus, has no authority to revisit the meaning assigned by a state court to words in a state statute. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005). Thus, this Court's task is limited to deciding whether “arousing sexual desire” is too vague to give fair notice.

         The statute provided Gaines with fair notice. For one, consistent with Powell, the state court analyzed the statute in the context of Gaines' conduct. Powell, 423 U.S. at 92. Gaines' text messages show that he knew he was asking children to send nude photos. (See, e.g., R. 7, PID 555, 558-59.) He did not think C.P. was old enough to drive, and repeatedly told M.M. that sexual contact between them would be “illegal.” (Id.) And the purpose of soliciting a child to send a nude photo is to arouse sexual desire. So even if the statute is broadly phrased, the state court reasonably concluded that the law put Gaines on notice that asking a child to send nude photos fell within the narrowed definition of an immoral act. See, e.g., United States v. Clark, 582 F.3d 607 (5th. Cir. 2009) (rejecting vagueness challenge to federal criminal statute that prohibits importation of an alien for prostitution or “other immoral purposes”). Thus, on his vagueness challenge, Gaines cannot clear the high bar set by § 2254(d).

         Turning to his First Amendment challenge, Gaines says the Michigan Court of Appeals unreasonably applied New York v. Ferber, 458 U.S. 747 (1982). (R. 1, PID 99.) Gaines' strongest argument is that the statute's use of “immoral act” proscribes constitutionally protected speech such as a mother's recommending an abortion to her child or skipping mass on Sundays. (R. 1, PID 100.)

         But Ferber upheld a state criminal statute prohibiting the distribution of material depicting sexual performances by children under sixteen. 458 U.S. at 749. The Court found no First Amendment violation where a state statute sought to punish harmful conduct: exploitative and abusive depictions of children. Id. And on habeas corpus review, “overbreadth scrutiny diminishes as the behavior regulated by the statute moves from pure speech toward harmful, unprotected conduct.” Staley v. Jones, 239 F.3d 769, 785 (6th Cir. 2001).

         And again, because this argument involves a state court's interpretation of a state statute, the Court's only task is to assess whether precluding conduct arousing sexual desire violates the First Amendment. Here, the Michigan Court of Appeals reasonably concluded that § 750.145a posed no danger to protected speech like abortion counseling or urging a child to skip church. The state court held that the accosting statute only punished criminal activity, such as soliciting a child to produce pornography. Gaines, 856 N.W.2d at 244. That is exactly the type of exploitative conduct Ferber says a state may constitutionally punish. As the conclusion reached by the Michigan Court of Appeals is in line with Ferber, Gaines cannot overcome § 2254(d). He is not entitled to relief.


         Gaines' next batch of claims allege a denial of his right to confront his accusers. Gaines contends the trial court improperly excluded a portion of A.W.'s testimony; constrained defense counsel's ability to cross-examine the victims about other people to whom they sent nude photos; and limited defense counsel's latitude to cross-examine the victims about their sexual encounters with other men.


         Gaines says the trial court committed a Confrontation Clause violation by improperly excluding a portion of A.W.'s testimony. On cross, defense counsel asked A.W., “[d]id anyone indicate to you what would happen if you didn't come [to testify]?” (R. 7, PID 505.) A.W. said yes, so defense counsel asked, “[a]nd that would be that you would be taken to jail?” (Id.) But before A.W. could answer, the prosecutor objected on hearsay grounds and the judge sustained the objection. (R. 7, PID 505-06.) Gaines says excluding A.W.'s testimony regarding a potential source of bias violated his Confrontation Clause rights. (R. 1, PID 66-67.)

         The Michigan Court of Appeals adjudicated this claim on the merits. The state court concluded that though the trial court erred in excluding the evidence, the error was harmless. Gaines, 856 N.W.2d at 237. The appellate court reasoned that plenty of evidence already indicated that A.W. did not want to testify so as not to get Gaines in trouble. Id. at 236. So any further investigation of her unwillingness to testify would have been cumulative. Id.

         Gaines contends the trial court contravened Supreme Court precedent holding that the Confrontation Clause permits a defendant to inquire into bases for bias, prejudice, or lack of credibility. See Davis v. Alaska, 415 U.S. 308, 347 (1974). (R. 1, PID 65.)

         But the record shows Gaines had ample opportunity to examine A.W.'s potential bias or lack of credibility. And the Confrontation Clause permits limits on the extent of a cross-examination, especially when cumulative. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). A.W. told the jury she was upset at having to testify and twice said she felt responsible for Gaines' criminal charges. (R. 7, PID 503.) To keep Gaines out of trouble, A.W. said she initially told the police nothing occurred between them. (R. 7, PID 504.) But she changed that story at trial, and only because the state subpoenaed her. (R. 7, PID 503-05.) In sum, the jury heard evidence of A.W.'s reluctance to testify and her changing story. Hearing about the consequences of ...

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