United States District Court, E.D. Michigan, Southern Division
COLLIN D. PITTMAN, Petitioner,
STEVE RIVARD, Respondent.
OPINION AND ORDER DENYING THE PETITION FOR WRIT OF
HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA
V. Parker U.S. District Court Judge.
prisoner Collin D. Pittman (“Petitioner”) has
filed a pro se habeas corpus petition challenging his Oakland
County convictions for two counts of criminal sexual conduct.
Petitioner raises twelve claims regarding probable cause to
arrest him, a state deadline for trying him, the admission of
certain evidence at trial, the prosecutor's conduct, the
trial court's rulings and jury instructions, the
assistance provided by trial and appellate counsel, his
sentence, and newly discovered evidence. The State urges the
Court to deny the petition on grounds that Petitioner's
claims are procedurally defaulted, are not cognizable on
habeas review, or are meritless. Additionally, the State
contends that the state courts' rejection of Petitioner
claims was objectively reasonable. The Court agrees that
Petitioner's claims do not warrant relief. Accordingly,
the petition will be denied.
convictions arose from criminal sexual conduct involving his
niece, the victim, when she was about fourteen years old.
Petitioner's jury trial in Oakland County Circuit Court,
sixteen-year-old MJ testified that she was living in a
residential center for juvenile delinquents. She previously
lived at Children's Village in Pontiac, where she and the
victim became friends. At some point during the girls'
stay at Children's Village, the victim confided in her
about something. MJ advised the victim to tell a counselor
about the matter, and the victim took her advice. MJ admitted
that she was rewarded for good behavior while confined as a
juvenile delinquent and that she would prefer living in the
community, but she denied being promised anything for her
Stafford testified that she was a youth specialist at Oakland
County Children's Village where she met MJ and the
victim. According to Stafford, one night at bedtime, the
victim informed her of something that Ms. Stafford had to
report. The victim did not provide any details or a name, but
she did mention that the person was related to her. Ms.
Stafford's supervisor completed a form about the matter,
and the matter was recorded on a log.
victim testified that her date of birth was October 21, 1990,
and that she was almost nineteen years old. She explained
that, when she was about fourteen years old, she and her
brother stayed at her grandfather's house while her
mother was in the process of moving. Petitioner was her
uncle, and he was also living at her grandfather's house
at the time. One night, her grandfather was sleeping
upstairs, and her brother was asleep in a back room. She was
sleeping on a couch in the living room of the house when her
uncle approached her and laid on top of her. He used his
private part to touch her “butt, ” and he used
his hand to touch both her “butt” and her private
part. Then he took off her underpants and inserted his penis
in her vagina. Afterward, he got up and went upstairs. She
went to the bathroom and noticed blood on her underwear and
nightgown. She spent the rest of the night in her
brother's room with the door locked.
victim did not disclose the incident to her grandfather or
brother because she did not think they would believe her, and
she did not tell her mother because her uncle was her
mother's brother, and her mother would have been hurt by
the information. She ultimately revealed the incident to MJ
at the Children's Village when MJ informed her about what
had happened to her. She went back to her grandfather's
house many times after the incident with her uncle, but her
uncle would act as though nothing had happened.
cross-examination, the victim expressed some uncertainty
about the date of the crimes. She also admitted that, when
Petitioner got locked up, she used to write letters to him,
and in one letter she wrote that she loved him and missed
him. The victim explained that her mother pressured her to
write to Petitioner and that she had not wanted her mother to
know what Petitioner had done to her.
victim's mother, Eugenia Pittman, testified that
Petitioner and the victim were very close at one time. Their
relationship deteriorated at some point, and in 2007, the
victim disclosed something to Ms. Pittman. Regarding
Petitioner, Ms. Pittman testified that he could be good at
times and bad at times. One time in 2005, he became violent
with a person in the victim's presence. He beat one of
his cousins and threatened to kill someone.
Killips testified as an expert in forensic interviewing and
the characteristics of child sexual assault victims. She
interviewed the victim on January 23, 2008, when the victim
was seventeen years old. The victim made an allegation of
sexual abuse by an uncle. Ms. Killips opined that it was
common for children to delay disclosure of sexual abuse.
chose not to testify, but he presented Detective Paul
McDougal and his brother Anthony Pittman as defense
witnesses. Detective McDougal testified that he wrote in his
incident report that the crimes occurred between the months
of October and November 2005. He admitted that he did not go
in the house where the crimes supposedly occurred and that he
did not interview the victim or the victim's mother,
brother, or grandfather. He also did not know whether
Petitioner was in custody on October 4, 2005.
brother, Anthony Pittman, testified that he was living with
his father and nephew in 2004 and 2005 and that the victim
may have spent a night or two there when she did not have a
ride. Anthony denied hearing any commotion that would suggest
the victim had been assaulted, and he did not see any signs
that anything inappropriate had occurred at the house.
Anthony described Petitioner as a nice guy who was helpful.
He admitted that Petitioner had gone to prison more than once
for drugs, but he did not think that Petitioner had a drug
problem. He was unaware of a conviction for assault and
battery, and he did not think Petitioner had a history of
violent behavior. He also did not see a violent outburst
between Petitioner and one of his nephews.
parties stipulated that Petitioner was in custody from July
13, 2004 to December 29, 2004, from August 19, 2005 to
September 7, 2005, and from October 4, 2005 to the present.
They further stipulated that Petitioner was not in custody
from December 29, 2004 to August 10, 2005 and from September
7, 2005 to October 4, 2005.
October 16, 2009, the jury found Petitioner guilty, as
charged, of one count of first-degree criminal sexual conduct
in violation of Michigan Compiled Laws §
750.520b(1)(b)(ii), and one count of second-degree criminal
sexual conduct in violation of Michigan Compiled Laws §
750.520c(1)(b)(ii). The trial court sentenced Petitioner as a
habitual offender to concurrent terms of imprisonment of
twenty-two years, nine months to forty years.
appeal from his convictions, Petitioner argued: (1) he was
denied a fair trial by extensive evidence that he had been in
prison; (2) he was denied due process and a fair trial by
evidence that he had engaged in violent behavior, the
prosecutor's statement that Petitioner had been convicted
of assault and battery, evidence that he had gone to prison
for a drug offense, and the prosecutor's argument
regarding illegal drugs; (3) the evidence was insufficient to
support his convictions beyond a reasonable doubt; (4) the
time limits of Michigan Compiled Laws § 780.131(1) were
violated; (5) offense variable four of the Michigan
sentencing guidelines was improperly scored at ten points;
and, (6) defense counsel deprived him of effective assistance
by failing to make proper objections and a record. These six
claims form Petitioner's first six grounds for federal
Michigan Court of Appeals rejected Petitioner's claims
and affirmed his convictions in an unpublished, per curiam
decision. People v. Pittman, No. 297391, 2011 WL
2555389 (Mich. Ct. App. June 28, 2011). On November 21, 2011,
the Michigan Supreme Court denied leave to appeal because it
was not persuaded to review the issues. People v.
Pittman, 805 N.W.2d 202 (Mich. 2011).
2012, Petitioner filed a motion for relief from judgment in
the state trial court in which he raised the following
arguments: (1) the trial court abused its discretion and
deprived him of a fair trial by failing to dismiss his case
for a violation of the State's 180-day rule, failing to
appoint substitute counsel despite a conflict of interest,
improperly instructing the jury on “mental anguish,
” failing to grant a directed verdict of acquittal, and
exceeding the sentencing guidelines without substantial and
compelling reasons; (2) the prosecutor deprived him of a fair
trial by coaching and intimidating witnesses, using perjured
testimony, and shielding the victim from him; (3) the police
lacked probable cause to arrest him; and, (4) trial counsel
was ineffective for failing to investigate witnesses and
consult Petitioner. These claims form the basis for
Petitioner's seventh through tenth habeas claims. The
trial court denied Petitioner's motion because he
previously raised, or could have raised, the claims on appeal
and because Petitioner had not met his burden of proving
entitlement to relief under Michigan Court Rule 6.508(D).
See People v. Pittman, No. 09-226631-FC, Op. and
Order (Oakland Cty. Cir. Ct. Nov. 21, 2013).
appealed the trial court's decision, but the Michigan
Court of Appeals denied leave to appeal for the reasons given
by the trial court: Petitioner had alleged grounds for relief
which were previously decided against him or could have been
raised on appeal and because he failed to establish
entitlement to relief under 6.508(D). People v.
Pittman, No. 320131 (Mich. Ct. App. Apr. 18, 2014).
Petitioner did not appeal the Michigan Court of Appeals'
decision. See Affidavit of Larry Royster, Clerk of
the Michigan Supreme Court, ECF No. 8-14.
post-conviction motion for an evidentiary hearing, Petitioner
purported to have newly discovered impeachment evidence. He
also alleged that he was denied the effective assistance of
appellate counsel. These arguments comprise Petitioner's
eleventh and twelfth habeas claims. The trial court treated
Petitioner's motion as a successive motion for relief
from judgment and denied the motion. People v.
Pittman, No. 2009-226631-FC, Order (Oakland Cty. Cir.
Ct. Feb. 27, 2014). Petitioner raised the same two issues in
the Michigan Court of Appeals, which dismissed
Petitioner's appeal under Michigan Court Rule
7.203(F)(1), because Petitioner was attempting to appeal the
denial of a successive motion for relief from judgment.
People v. Pittman, No. 322425 (Mich. Ct. App. July
appealed to the Michigan Supreme Court, which denied leave to
appeal because Petitioner's motion was prohibited by
Michigan Court Rule 6.502(G), the rule governing second or
successive motions for relief from judgment. People v.
Pittman, 861 N.W.2d 899 (Mich. 2015). On September 9,
2015, the Michigan Supreme Court denied Petitioner's
motion for reconsideration. People v. Pittman, 868
N.W.2d 471 (Mich. 2015).
on November 17, 2014, Petitioner filed his habeas corpus
petition. Although the State argues in an answer to the
habeas petition that some of Petitioner's claims are
procedurally defaulted, a procedural default is not a
jurisdictional matter. Trest v. Cain, 522 U.S. 87,
89 (1997). Additionally, to prevail on procedurally defaulted
claims, a petitioner “must establish cause and
prejudice for the defaults” and “also show that
the claims are meritorious.” Babick v.
Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). In the
interest of efficiency, the Court will bypass the alleged
procedural defaults and go directly to the merits of
Petitioner's claims, as the claims lack substantive
merit, and “the cause-and-prejudice analysis adds
nothing but complexity to the case.” Id.
STANDARD OF REVIEW
statutory authority of federal courts to issue habeas corpus
relief for persons in state custody is provided by 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA).” Harrington v.
Richter, 562 U.S. 86, 97 (2011). Pursuant to §
2254, the Court may not grant a state prisoner's
application for the writ of habeas corpus unless the state
court's adjudication of the prisoner's claims on the
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d).
federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly. Rather, that
application must also be unreasonable.” Williams v.
Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus
imposes a ‘highly deferential standard for evaluating
state-court rulings, ' Lindh v. Murphy, 521 U.S.
320, 333, n. 7 (1997), and ‘demands that state- court
decisions be given the benefit of the doubt, '
Woodford v. Visciotti, 537 U.S. 19, 24 (2002)
(per curiam).” Renico v. Lett, 559
U.S. 766, 773 (2010).
state court's determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded
jurists could disagree' on the correctness of the state
court's decision.” Richter, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). To obtain a writ of habeas corpus from a federal
court, a state prisoner must show that the state court's
ruling on his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id. at 103.
a state court's determination of a factual issue is
presumed to be correct unless the petitioner rebuts the
presumption of correctness with clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Holland v.
Rivard, 800 F.3d 224, 242 (6th Cir. 2015), cert.
denied, 136 S.Ct. 1384 (2016). In addition,
“review under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011).
Claim One: Inadmissible Evidence of Imprisonment
alleges in claim one that he was denied a fair trial by
extensive evidence that he had been in prison. As examples of
this, Petitioner points to: the prosecutor's comments
during opening statements that the crimes occurred when
Petitioner was home after being away (10/15/09 Trial Tr.,
Afternoon Session, at 14 and 18, ECF No. 8-5 at Pg ID 297,
301); defense counsel's reference to correspondence
between Petitioner and the victim (id. at 25, Pg ID
308); the victim's testimony that, after the crime,
Petitioner “was still out” and “still
around” (id. at 119, Pg ID 402); the
victim's testimony about her correspondence with
Petitioner while Petitioner was in prison (id. at
124, Pg ID 407); defense counsel's question to Detective
McDougal as to whether Petitioner was in custody on October
4, 2005 (10/16/09 Trial Tr. at 124-28, ECF No. 8-6 at Pg ID
541-45); and the prosecutor's closing argument that the
range of dates when the crimes occurred was based on times
when Petitioner was not in custody (id. at 145-46,
Pg ID 562-63).
Michigan Court of Appeals determined that some of these
references to Petitioner's incarceration were not
prejudicial and that Petitioner opened the door to other
comments about his prior incarceration. This Court agrees for
the following reasons.
as noted by the Michigan Court of Appeals, the jury would not
necessarily have understood the comments and testimony about
Petitioner being away, “still out, ” or
“still around” to mean that Petitioner had been
in prison. Second, it was defense counsel who elicited
testimony that the victim had written to Petitioner in
prison. It was also defense counsel who asked Detective
McDougal whether Petitioner was in custody on October 4,
2005. Because defense counsel invited the claimed errors,
Petitioner may not claim now that the errors deprived him of
a fair trial. See Fields v. Bagley, 275 F.3d 478,
486 (6th Cir. 2001) (“When a petitioner invites an
error in the trial court, he is precluded from seeking habeas
corpus relief for that error.”)
part of Petitioner's defense was that he could not have
committed the crimes because he was in custody at the time.
The Court, therefore, concludes that the references to
Petitioner being in custody did not violate his right to a
fair trial. The references were either too vague to be
prejudicial or they were invited errors that were meant to
support the defense theory.
Claim Two: Prosecutorial Misconduct
alleges in claim two that he was denied due process and a
fair trial when the prosecutor did the following: elicited
Ms. Pittman's testimony that Petitioner previously
engaged in violent behavior (10/16/05 Trial Tr. at 21-24, ECF
No. 8-6 at Pg ID 438-39); asked Petitioner's brother
whether Petitioner had been convicted of assault and battery
and had gone to prison for a drug offense (id. at
113-14, Pg ID 530-31); and stated during her closing argument
that Petitioner may have committed the crimes in question
while he was under the influence of illegal drugs
(id. at 124, Pg ID 541).
Clearly Established Federal Law
of prosecutorial misconduct are reviewed deferentially”
in a habeas corpus proceeding. Millender v. Adams,
376 F.3d 520, 528 (6th Cir. 2004). “[T]he touchstone of
due process analysis in cases of alleged prosecutorial
misconduct is the fairness of the trial, not the culpability
of the prosecutor.” Smith v. Phillips, 455
U.S. 209, 219 (1982). The relevant question is whether the
prosecutor's conduct infected the trial with such
unfairness as to make the resulting conviction a denial of
due process. Darden v. Wainwright, 477 U.S. 168, 181
Because that standard is “a very general one, ”
courts have considerable leeway in resolving such claims on a
case-by-case basis. Parker v. Matthews, 567 U.S. 37,
48, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam). That
leeway increases in assessing a state court's ruling
under AEDPA. [Courts] “cannot set aside a state
court's conclusion on a federal prosecutorial-misconduct
claim unless a petitioner cites . . . other Supreme Court
precedent that shows the state court's determination in a
particular factual context was unreasonable.”
Trimble [v. Bobby, 804 F.3d 767, 783 (6th Cir.
Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th
from the victim's mother that Petitioner had previously
engaged in violent behavior was proper because it explained
why the victim may have feared Petitioner and delayed
disclosing what Petitioner had done to her. This was relevant
evidence, and according to the Michigan Court of Appeals, it
was offered for a proper purpose under the Michigan Rules of
Evidence. Pittman, 2011 WL 2555389, at *2.
the prosecutor's questions about Petitioner's prior
convictions for assault and battery and a drug offense were
proper. Because Petitioner's brother initially vouched
for Petitioner's character, the prosecutor was permitted
to cross-examine him about Petitioner's specific acts of
misconduct. According to the Michigan Court of Appeals, the
testimony was admissible to rebut the brother's favorable
character evidence and to test his knowledge and candor. The
state court's interpretation of state law binds this
Court sitting in habeas corpus, Bradshaw v. Richey,
546 U.S. 74, 76 (2005), because “it is not the province
of a federal habeas court to reexamine state-court
determinations on state-law questions.” Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991).
prosecutor's comment during closing arguments that
Petitioner may have committed the crimes in question while he
was under the influence of illegal drugs was not improper for
a different reason. The comment was a reasonable inference
from the victim's testimony that Petitioner was not
acting normally on the night in question (10/15/09 Trial Tr.,
Afternoon Session, at 91-92, ECF No. 8-5 at Pg ID 374-75) and
that he had acted as though she was not his niece and did not
care about what he was doing (id. at 83-84, Pg ID
366-67). Prosecutors may “forcefully assert inferences
from the evidence.” Cristini v. McKee, 526
F.3d 888, 901 (6th Cir. 2008). Moreover, the Court cannot
conclude that the prosecutor's conduct infected the trial
with such unfairness as to make the resulting conviction a
denial of Petitioner's due process rights.
conclude, the disputed comments and questions did not deprive
Petitioner of a fair trial, and the state appellate
court's rejection of Petitioner's claim was not
unreasonable. Furthermore, to the extent Petitioner is
complaining that the trial court erred by permitting the
prosecutor to introduce evidence of Petitioner's
propensity to commit crime, his claim is not cognizable on
habeas review. “There is no clearly established Supreme
Court precedent which holds that a state violates due process
by permitting propensity evidence in the form of other bad
acts evidence.” Bugh v. Mitchell, 329 F.3d
496, 512 (6th Cir. 2003). Thus, “there is no Supreme
Court precedent that the trial court's decision could be
deemed ‘contrary to' under AEDPA.”
Id. at 513. Petitioner has no right to relief on the
basis of his prosecutorial-misconduct claims.
Claim Three: Insufficient Evidence
alleges next that the evidence was insufficient to support
his convictions beyond a reasonable doubt. The Michigan Court
of Appeals concluded on direct review of Petitioner's
claim that his challenge to the sufficiency of the evidence
Clearly Established ...