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Hernandez v. McKee

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

February 7, 2018

Cristoval Hernandez, # 831592, Petitioner,
v.
Kenneth McKee, Respondent.

          Honorable Paul L. Maloney

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN United States Magistrate Judge.

         This is a habeas corpus proceeding brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner's convictions stem from his repeated sexual assaults against his stepdaughter, “AV, ” beginning when she was thirteen or fourteen years old. On February 3, 2012, an Ingham County Circuit Court jury found petitioner guilty of nine counts of first-degree criminal sexual conduct, Mich. Comp. Laws ' 750.520b(1)(b)(i) (sexual penetration of a person who is at least thirteen but less than sixteen years of age and defendant is a member of the same household), one count of second-degree criminal sexual conduct, Mich. Comp. Laws ' 750.520c(1)(b)(i) (sexual contact with a person who is at least thirteen but less than sixteen years of age and defendant is a member of the same household), one count of third-degree criminal sexual conduct, Mich. Comp. Laws ' 750.520d(1)(d) (sexual penetration with a person who is related to defendant), and one count of disseminating sexually explicit matter to a minor, Mich. Comp. Laws ' 722.675.

         On February 29, 2012, the trial court judge sentenced petitioner to concurrent sentences of 22 2 to fifty years' imprisonment on the nine first-degree criminal sexual conduct convictions, five years and eleven months to eight years and four months' imprisonment on the second-degree criminal sexual conduct conviction, seven years and one month to fifteen years' imprisonment on the third-degree criminal sexual conduct conviction, and one year and four months to two years' imprisonment on the disseminating sexually explicit matter to a minor conviction.

         On March 24, 2015, petitioner filed his habeas corpus petition. (ECF No. 1). Petitioner seeks federal habeas corpus relief on the grounds that were raised and rejected in the Michigan Court of Appeals:

I. Petitioner was denied his constitutional right to confront his accusers by the trial court's limitations on cross-examination. U.S. Const. amend VI, XIV.
II. Petitioner was denied his constitutional right to a fair trial and his right of confrontation and the trial court erred in denying a motion for mistrial where the prosecutor asked improper leading questions which resulted in petitioner being unable to confront one of his accusers, and petitioner was further prevented from impeaching her testimony. U.S. Const. amend VI, XIV.
III. Petitioner was denied a fair trial by the trial court's qualification of a detective as an expert in “grooming” and by testimony that defendant had been grooming his step-daughter. U.S. Const. amend VI, XIV.
IV. Petitioner was denied a fair trial by the admission, over objection, of other bad acts testimony. U.S. Const. amend XIV.
V. The trial court erred in admitting an entire box full of allegedly pornographic movies that were not connected to the offenses charged and that were irrelevant, inflammatory, and more prejudicial than probative. U.S. Const. amend XIV.
VI. Petitioner must be resentenced because the trial judge's reasons for an upward departure under Michigan's sentencing guidelines were, in part, not objective and verifiable, were already considered in the guidelines, or did not pertain to petitioner; the trial court assumed petitioner was guilty of another offense without proof; and the trial judge failed to articulate a substantial and compelling reason for the extent of the upward departure. U.S. Const. amend XIV.

(Id. at PageID.2-3).

         Respondent argues that the petition should be denied because all grounds raised by petitioner lack merit. Further, respondent argues that Ground III is also barred by procedural default.[1] (ECF No. 12).

         Judge Maloney has referred the matter to me for all purposes, including the issuance of a report and recommendation under 28 U.S.C. § 636(b)(1)(B) and Rule 10 of the Rules Governing Section 2254 Cases in the District Courts. After review of the state-court record, I conclude petitioner has not established grounds for federal habeas corpus relief. Petitioner has not shown that the state court decision rejecting the grounds raised in the petition “were contrary to, or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States” or were “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[s].” 28 U.S.C. § 2254(d). I recommend that the petition be denied on the merits.

         Standard of Review

         The Court's review of this petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA). See Penry v. Johnson, 532 U.S. 782, 792 (2001). AEDPA “dictates a highly deferential standard for evaluating state-court rulings which demands the state court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (citations omitted). “AEDPA requires heightened respect for state court factual and legal determinations.” Lundgren v. Mitchell, 440 F.3d 754, 762 (6th Cir. 2006). “State-court factual findings [] are presumed correct; the petitioner has the burden of rebutting the presumption by clear and convincing evidence.” Davis v. Ayala, 135 S.Ct. 2187, 2199-2200 (2015) (citations and internal quotations omitted).

         If a state court adjudicated the claim, deferential AEDPA standards must be applied. 28 U.S.C. § 2254(d); see Premo v. Moore, 562 U.S. 115, 121 (2011); Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Holder v. Palmer, 588 F.3d 328, 341 (6th Cir. 2009) ((“[A]ny claim that was adjudicated on the merits in State court proceedings= is subject to AEDPA deference.”) (quoting 28 U.S.C. § 2254(d)). AEDPA prevents federal habeas “retrials” and ensures that state court convictions are given effect to the extent possible under law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). It prohibits “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Parker v. Matthews, 132 S.Ct. 2148, 2149 (2012) (per curiam).

         The AEDPA standard is difficult to meet “because it was meant to be.” Harrington v. Richter, 562 U.S. 86, 102 (2011). “Section 2254(d) reflects that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error corrections through appeal.” Id. at 102-03 (citation and internal quotation omitted); see Woods v. Donald, 135 S.Ct. 1372, 1376 (2015). Section 2254(d) states that an application for a 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); see White v. Wheeler, 136 S.Ct. 456, 460 (2015); Davis v. Ayala, 135 S.Ct. at 2198; White v. Woodall, 134 S.Ct. 1697, 1702 (2014).

         The only definitive source of clearly established federal law for purposes of ' 2254(d)(1) is the holdings - not dicta - of Supreme Court decisions. White v. Woodall, 134 S.Ct. at 1702; see Woods v. Donald, 135 S.Ct. at 1377 (“Because none of our cases confront ‘the specific question presented by this case, ' the state court's decision could not be ‘contrary to' any holding from this Court.). “[W]here the precise contours of a right remain unclear, state courts enjoy broad discretion in their adjudication of a prisoner's claims.” Id. (quotations and internal citations omitted).

         An unreasonable application of the Supreme Court's holding must be “'objectively unreasonable, ' not merely wrong; even ‘clear error' will not suffice.” White v. Woodall, 134 S.Ct. at 1702 (quoting Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003)). Rather, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” White v. Woodall, 134 S.Ct. at 1702 (quoting Harrington v. Richter, 562 U.S. at 103). “[C]ircuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court, ' ” and A[i]t therefore cannot form the basis for habeas relief under AEDPA.” Hill v. Curtin, 792 F.3d 670, 677 (6th Cir. 2015) (quoting Parker v. Matthews, 132 S.Ct. at 2155); see Glebe v. Frost, 135 S.Ct. 429, 431 (2014) (per curiam) (“As we have repeatedly emphasized, [] circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.' ”).

         “[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Section 2254 (d)(2) requires that this Court accord the state trial court substantial deference. If reasonable minds reviewing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court's determination. Brumfield v. Cain, 135 S.Ct. 2269, 2277 (2015); Burt v. Titlow, 134 S.Ct. 10, 15 (2013).

         Proposed Findings of Fact

         A. Circuit Court Proceedings

          Petitioner's trial began on January 26, 2012, and it concluded with the jury's verdict on February 3, 2012, finding him guilty on all twelve charges. (Trial Transcripts, TT1-TT6, ECF No. 13-7 through 13-12).

         The primary witness against petitioner was the victim, his step-daughter, AV. (TT3 at 30-236, ECF No. 13-9, PageID.489-540; TT4 at 4-70, ECF No. 13-10, PageID.545-61). The jury's verdict indicates that it found credible AV's testimony regarding petitioner's criminal sexual conduct. The specifics of AV's testimony regarding each incident of criminal sexual conduct petitioner committed against her need not be revisited.[2]

         AV's maternal grandmother described how petitioner's criminal sexual conduct against AV came to the attention of law enforcement officials. (TT2 at 52-97, ECF No. 13-8, PageID.434-46). Juan Zavala, AV's ex-boyfriend, testified regarding details of his relationship with AV, her behavior, and some additional details regarding the decision to contact the police. (Id. at 112-31, PageID.449-54).

         Representatives of law enforcement, child protective services, and a physician testified regarding details of their investigations. (TT2 at 45-52, 132-205, ECF No. 13-8, PageID.433-34, 454-73; TT4 at 182-237, PageID.589-603; TT5 at 195-208, ECF No. 13-11, PageID.659-62).

         The jury also heard testimony from members of AV's family, including the following:[3] AV's mother and petitioner's co-defendant, Rebbecca Hernandez (TT5 at 139-94, ECF No. 13-11, PageID.645-59); AV's sister CS (TT4 at 113-70, ECF No. 13-10, PageID.571-86), AV's step-brother Cristoval Jr. (TT5 at 90-105, ECF No. 13-11, PageID.633-37), and AV's step-sister FH (TT4 at 78-111, ECF No. 13-10, PageID.563-571).

         On February 2, 2012, the attorneys gave their closing arguments. (TT5 at 208-63, ECF No, 13-11, PageID.663-76). On the same date, the trial court judge delivered the jury instructions. (Id. at 263-92, PageID.676-84).

         On February 3, 2012, the jury found petitioner guilty on all twelve counts. (TT6 at 3-6, ECF No. 13-12, PageID.687).

         On February 29, 2012, Judge Clinton Canady conducted a sentencing hearing. (Sentencing Transcript, (ST), ECF No. 13-13, PageID.690-98). The prosecution asked that the court depart two times above the guideline range. Petitioner's attorney requested a sentence within the guidelines range. Judge Canady found eight reasons why a fifty percent upward departure from Michigan's sentencing guidelines was warranted: (1) AV was singled out in the household for abuse and Rebecca and petitioner tried to classify her as a problem child; (2) the sentencing guidelines failed to account for a stepfather and a mother forcing a child to engage in multiple sex acts with them; (3) the sentencing guidelines failed to account for the three year length of time that the sexual abuse occurred; (4) one of the reasons that AV did not say anything about the abuse was because she feared that CS would be victimized if she did so; (5) once AV left the house, petitioner did in fact turn to CS and sexually assault her; (6) AV was exposed to all types of sexual acts, pornographic materials, sex aids, and being compelled to perform a sexual act on her mother; (7) Rebecca beat AV when AV was noncompliant with sexual acts; and (8) although FH's testimony was vague, it was reasonable to conclude that petitioner did “something” to FH, showing that he simply “move[d] on” to the next victim when AV was not available. (ST at 24-26, PageID.696-97).

         Judge Canady noted that a fifty-percent departure was proportionate. It was significantly less than the doubling requested by the prosecution. AV had “”just turned 14 when this happened, ” and if she had been thirteen, the offense would have carried a 25 year minimum sentence. When AV was no longer available for sexual violations because she moved out of the house, petitioner moved on to her younger siblings. Accordingly, Judge Canady exercised his discretion and departed from the upper limit of the sentencing guidelines range on the first-degree criminal sexual conduct convictions by fifty percent and imposed a 22-2-year minimum sentence. (Id. at 26-28, PageID.697). Given the upward departure on the primary counts and that all the sentences would be served concurrently, no departure on the other counts was necessary. Judge Canady sentenced petitioner to five years and eleven months to eight years and four months' imprisonment on the second-degree criminal sexual conduct conviction, seven years and one month to fifteen years' imprisonment on the third-degree criminal sexual conduct conviction, and one year and four months to two years' imprisonment on the disseminating sexually explicit matter to a minor conviction. (Id. at 27-29, PageID.697-98).

         Petitioner pursued a direct appeal and raised the same issues that he is raising in his habeas corpus petition. (Defendant Appellant's Brief at v-vi, Statement of Questions Presented, ECF No. 13-14, PageID.735-36). On November 12, 2013, the Michigan Court of Appeals found that all grounds raised by petitioner were meritless and it affirmed petitioner's convictions and sentence. (Op. at 1-27, ECF No. 13-14, PageID.699-725).

         Petitioner generally raised the same issues in his application for leave to appeal to the Michigan Supreme Court.[4] (Defendant-Appellant's Brief at vi-vii, Statement of Questions Presented, ECF No. 13-15, PageID.938-39). On March 28, 2014, the Michigan Supreme Court denied petitioner's application for leave to appeal. (ECF No. 13-15, PageID.930).

         On March 30, 2015, petitioner filed his federal habeas corpus ...


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