United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney
REPORT AND RECOMMENDATION
PHILLIP J. GREEN United States Magistrate Judge.
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 '
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.
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
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).
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. (ECF No. 12).
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.
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).
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).
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).
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
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.'
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).
Findings of Fact
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).
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.
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).
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).
jury also heard testimony from members of AV's family,
including the following: 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,
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).
February 3, 2012, the jury found petitioner guilty on all
twelve counts. (TT6 at 3-6, ECF No. 13-12, PageID.687).
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).
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).
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).
generally raised the same issues in his application for leave
to appeal to the Michigan Supreme Court.
(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).
March 30, 2015, petitioner filed his federal habeas corpus