United States District Court, W.D. Michigan, Southern Division
Honorable Robert J. Jonker
REPORT AND RECOMMENDATION
Ray
Kent United States Magistrate Judge
This is
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Mark Anthony Gowens is
incarcerated with the Michigan Department of Corrections at
the Muskegon Correctional Facility (MCF) in Muskegon,
Michigan. On May 4, 2012, an Allegan County Circuit Court
jury found Petitioner guilty of two counts of third-degree
criminal sexual conduct (CSC III). On July 23, 2012, the
court sentenced Petitioner as a fourth-offense felony
offender, Mich. Comp. Laws § 769.12, to two prison terms
of 18 to 30 years.
On
October 27, 2016[1], Petitioner filed his habeas corpus
petition raising two grounds for relief, as follows:
I. WHETHER PETITIONER'S TRIAL COUNSEL WAS
CONSTITUTIONALLY INEFFECTIVE. WHERE IT HAS BEEN DEMONSTRATED
THAT COUNSEL'S PERFORMANCE FELL BELOW AN OBJECTIVE
STANDARD OF REASONABLENESS, AND ABSENT SUCH ERRORS, THE
OUTCOME OF THE TRIAL WOULD HAVE BEEN DIFFERENT.
II. WHETHER PETITIONER WAS INCORRECTLY SCORED OV 11 AND
SHOULD BE REMANDED FOR RESENTENCING WITHIN A LOWER GRID.
(Pet., ECF No.2, PageID.18.) Respondent has filed an answer
to the petition (ECF No. 7) stating that the grounds should
be denied because they are noncognizable and/or without
merit. Upon review and applying the standards of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. 104-132, 110 Stat. 1214 (AEDPA), I find that Ground I of
the petition lacks merit and Ground II is not cognizable on
habeas review. Accordingly, I recommend that the petition be
denied.
Discussion
I.
Factual allegations
Petitioner's
convictions arose from two separate incidents over the course
of the night of September 29-30, 2011, during which the
sleeping victim woke twice to find Petitioner committing
penile-vaginal penetration. Petitioner originally was charged
with four counts of CSC III and one count of assault with
intent to commit sexual penetration. In addition, the
prosecutor filed a notice that the Petitioner was a fourth
felony offender under the habitual offender act. At the
preliminary examination held on November 9, 2011, the
prosecutor moved to amend the information, to remove the
theory of force and coercion, and replace it with physical
helplessness on counts 1 and 2 of CSC III, as well as
altering count 3 to reflect digital penetration. The court
agreed to the amendment of counts 1 and 2 and bound
Petitioner over on those counts, but it dismissed the
remaining two counts of CSC III (counts 3 and 4), as well as
count 5, for assault with intent to commit sexual
penetration. (Prelim. Exam. Tr., ECF No. 8-2,
PageID.153-154.)
Petitioner
was tried before a jury over the course of four days, from
May 1, 2012, through May 4, 2012.[1] Lisa Vissers testified that
she was 44 years old and had two adult children, Jimmy
Hitchcock (27) and Evelyn Hitchcock (21). On the night of
September 29-30, 2011, Vissers lived in a two-bedroom trailer
home with another woman, Casey Plummer, to whom she paid
rent. The trailer park was across the street from a Family
Dollar store, and she had previously met Petitioner in the
store's parking lot, but they were not friends. (T. Tr.
I, ECF No. 8-5, PageID.317-318, 320-22.) Vissers walked home
from her job at Allegan Metal Finishing, arriving at about
8:40 p.m. When she arrived, a car was outside the trailer.
Petitioner jumped out, while another man remained inside the
car. (Id, PageID.322-323.) Petitioner indicated that
he wanted to come inside, but Vissers told Petitioner that
she had to do a Western Union transfer for one of her
grandchildren. Vissers was carrying a box containing items
she had removed from her work locker. When she put the box
inside, she had to be forceful to prevent Petitioner from
entering the trailer. (Id., Page.ID.326.) Vissers
testified that she did not feel comfortable with Petitioner,
as he had previously watched and followed Vissers and Plummer
while they were shopping at Family Dollar. Vissers had told
Plummer that she did not want Petitioner at the trailer,
because she was not comfortable, but Plummer told her that it
was her trailer and she could have him there if she wanted.
(Id., Page.ID.324-325.) Vissers went next door to
get a ride to Western Union, and she was gone for about 10 or
15 minutes. When she came home, Plummer was in the house with
Petitioner and a man named “John, ” and all of
them were drinking. (Id., PageID.327.) Vissers began
to play on the desktop computer that was in the living room.
(Id., PageID.328.) Petitioner was sitting on the
couch near Vissers, and Plummer and John were in the kitchen
drinking. (Id., PageID.329.) While she was on the
computer, Petitioner kept trying to hold her hand. She pulled
her hand back repeatedly. (Id., PgeID.330.) Later in
the evening, she went to her bedroom to get things for her
bath, but Petitioner followed her in the bedroom, so she gave
up. She put her things in the bathroom, but went back to the
living room to play on the computer. (Id.,
PageID.333, 336, 371.) Petitioner again tried to hold her
hand and tried to get her to sit on the couch. (Id.,
PageID.333.) Every time Vissers got up to get something to
drink or to do anything, Petitioner followed her.
(Id., PageID.337.) None of the room doors inside the
trailer had locks on them. (Id., PageID.319, 336.)
Vissers explained that she had not had any alcohol, because
she was on a number of medications, including three seizure
medications. (Id., 334.) Vissers gave a number of
responses about when she took her seizure medications: 1:00
or 2:00 p.m. and 9:00 p.m. (Id., PageID.334, 341);
9:00 a.m, 3:00 p.m., and 9:00 p.m. (Id., PageID.390,
392, 419); 1:00 a.m. (Id., PageID.418.) Vissers
testified that she did not smoke, did not allow others to
smoke in her room, and did not know how the cigarette butts
that were in her room got on the floor. (Id.,
PageID.335, 368.) She testified that Plummer saw everything,
but that Plummer was drinking heavily and became very drunk
by 1:00 or 2:00 a.m. (Id., PageID.337-339.) Vissers
asked Plummer a couple of times to ask Petitioner to leave,
but Plummer was too busy drinking. At some point during the
evening Plummer wanted money for beer. Vissers gave her
$10.00, at which point John took Plummer to the store.
Vissers remained at the trailer with Petitioner for 15 or 20
minutes. She played on the computer, and Petitioner watched
television. (Id., PageID.339-340.)
Vissers'
son, Jimmy Hitchcock, came over at around 10:00 or 10:30 p.m.
Vissers usually went to bed at about 9:00 p.m., after taking
her pills, because they make her really sleepy. On this
night, she took her pills at 9:00 p.m., but, because of the
noisy company and music, she was up and stayed up to visit
with her son. (Id., PageID.340-341, 344-345, 419.)
After a while, because her son was there, she again tried to
take a bath. When she was still in the bathroom, getting
dressed after her bath, Petitioner walked in without
knocking, again making her uncomfortable. Vissers told him to
get out, which he did. (Id., PageID.341-343.)
Vissers went into the bedroom, shut the door, and got into
her single bed. (Id., PageID.344.) She had a hard
time sleeping because of the noise, despite asking several
times to have the radio turned down. She ended up going to
sleep at about 2:00 a.m., and she slept heavily because of
the drugs. (Id., PageID.345-346.) The next thing
Vissers knew, she woke up, lying on her stomach, to find
Petitioner on top of her, with his penis in her vagina. She
told him to stop and pushed him off. Petitioner apologized
and left the room. (Id., PageID.346-347.) She
realized that her underwear and pajama bottoms were on the
floor, so she pulled them back on. (Id.,
PageID.347.) Vissers testified that she felt nasty and dirty.
She rolled up in a blanket, trying to sleep. She was
embarrassed to tell anyone, so she was not going to report
it. (Id., PageID.349-350.) Vissers fell asleep
crying and awoke at about 4:30 a.m. to find herself on her
back, with Petitioner on top of her with his penis in her
vagina. Her pajamas were again off and at the end of her bed.
(Id., PageID.351.) Vissers pushed Petitioner off of
her. Petitioner again said he was sorry and left.
(Id., PageID.352-353.) Vissers grabbed her clothes
and went to the bathroom to get dressed for work, though it
was an hour earlier than she usually arose. (Id.,
PageID.353.) She remained in the bathroom for quite a while.
(Id., PageID.403.) She subsequently woke Plummer for
work, told Plummer she was leaving, and left the trailer.
(Id., PageID.353.) She intentionally did not shower
that morning, as she knew that she should preserve evidence
if she reported the crime. Vissers testified that she did not
have a cell phone with her in the bedroom, as she kept it in
her purse, which was in the kitchen. (Id.,
PageID.353-354, 356.)
Visser
went to work, where she remained until about 11:00 a.m. At
that time, a man she worked with touched her shoulder and she
“lost it.” (Id., PageID.354.) Fellow
workers told her boss that she was “flipping out,
” and she was instructed to talk to her supervisor.
(Id.) She told her boss what had happened, and they
sent her home. (Id., PagerID.354, 359.) As she was
walking back to the trailer, she called her son, who was
sleeping in Plummer's room, and told him what was going
on. (Id., PageID.359-360.) Vissers did not know if
Petitioner was still at the trailer and asked her son to
check. Her son went across the road, got her neighbor John
(Ryan) Eldridge, and looked in Vissers' bedroom, finding
Petitioner in her bed. (Id., PageID.361-362.)
Vissers ultimately decided to walk to her grandson's
mother's home about 45 minutes away, rather than going
home. (Id., PageID.359-360.) Once there, Vissers
called the police. Detective Mendell talked to her and then
took her to the Center for Women in Transition in Holland,
where she had a rape examination. (Id.,
PageID.362-364.) Vissers did not go home that night, but
instead stayed with someone else. (Id., PageID.365.)
Vissers testified that, since the events of September 30,
2011, she had been stressed out and depressed. (Id.,
PageID.373.)
The
court also heard testimony from John Eldridge, who lived
across the street from Vissers. On the morning of September
30, 2011, Jimmy Hitchcock came over to ask Eldridge for help
getting someone out of the house. Eldridge woke a man named
“Mark, ” and told him that the people who lived
there wanted him to leave. The man was sleeping on
Vissers' bed, wearing pants, but no shirt. The man stated
that “Junior” was supposed to wake him earlier,
because he had to work. (T. Tr. II, ECF No. 8-8,
PageID.480-482.)
Jimmy
Hitchcock, Vissers' 27-year-old son, testified that his
father dropped him at the trailer occupied by Casey Plummer
and his mother between 9:30 and 10:00 p.m. After he had been
there for a half hour, Petitioner and John arrived.
(Id., PageID.486-487.) He was familiar with
Petitioner and thought that his mother had gone to high
school with Petitioner. (Id., PageID.487, 509.)
Hitchcock saw his mother drink some portion of a beer.
(Id., PageID.488.) He, Plummer, and John went to get
more beer sometime later, leaving his mother and Petitioner
alone for 15 minutes. His mother was acting like she did not
want to be close to Petitioner. She spent most of the night
at the computer, but Petitioner stared at her and every time
she got up, he would follow her. (Id.,
PageID.490-491.) According to Hitchcock, they all drank beer,
but Petitioner, John, and Casey also used some pills and
marijuana. Hitchcock saw Petitioner repeatedly put his hand
on her leg and saw her indicate that it was bothering her.
(Id., PageID.493-496.) At about 11:30 p.m. or 12:00
a.m., Vissers got ready to go to bed, and went into the
bathroom to take a bath. After the bath, she told the others
that she was going to bed because she had to work in the
morning. (Id., PageID. 497-498.) Petitioner and John
indicated that they were going to leave. John left a little
later, and Petitioner said he was leaving about 20 minutes
later. Hitchcock did not see him leave. (Id.,
PageID.498-499.) Hitchcock went into Plummer's bedroom to
go to sleep, but Plummer was still up, though she was very
intoxicated and stumbling around. (Id., PageID.500.)
Hitchcock saw that his mother's door was closed. The next
morning when he woke up, he saw that he had a voice mail from
his mother, saying that he needed to call her because it was
an emergency. He called her, and she told him everything that
had happened. She was upset, did not want Hitchcock to go
back in the house, and asked him to get Eldridge to see if
Petitioner was still there and, if so, to get him to leave.
(Id., PageID.502-504.) After he had done as his
mother requested, Petitioner stayed at Eldridge's
trailer. He then walked to meet her at work, after which they
went to his ex-girlfriend's house. (Id.,
PageID.507.) Hitchcock stayed when his mother called the
police. She was crying and scared. (Id.,
PageID.508.) Defense counsel asked the following question:
Q. Your mom had testified that one of the reasons you
didn't stay around with Mark because you were on
probation and you weren't supposed to be around Mark. Is
that correct? . . . You were on probation at the time?
A. Yes.
Q. You weren't supposed to be using alcohol or be around
certain individuals?
A. No.
(Id., PageID.510-511.) Shortly thereafter, on
redirect, the prosecutor asked a follow-up question:
Q. Okay. The defense attorney asks you you're on
probation so you're not supposed to be around Mark. Why
not?
A. I'm thinking because he's got a felony.
(Id., PageID.512.) The exchange elicited a prompt
defense objection, leading to a side bar, which was not
recorded. Following the side bar, no further questions were
asked and no instruction was given to the jury.
(Id., PageID.512-513.)
Lisa
Sweet testified as the expert sexual assault nurse examiner
who saw Vissers at the Center for Women in Transition on
September 30, 2017. (Id., PageID.536.) She testified
to the history provided by Vissers, which roughly paralleled
Vissers' testimony. (Id., PageID.538-539.) Sweet
found some small bruises on Vissers' legs, she found no
injuries to Vissers' genitalia. Sweet testified that she
was not surprised by the absence of injury, as the lack of
injury is common. (Id., PageID.541, 548-49,
566-567.) She took genital, anal, and oral swabs from
Vissers, and she swabbed the inside of Vissers's thigh
just below the genitals. (Id., PageID.541-542.)
Michigan
State Police DNA examiner Ann Hunt testified as an expert in
forensic DNA. (Id., PageID.579.) Hunt testified that
she examined the samples submitted in the case and found no
evidence of seminal fluid or sperm cells. (Id.,
PageID.586.) However, on the sample taken from Vissers'
thigh and labia swabs, she found evidence of saliva.
(Id., PageID.587.) Hunt analyzed the swabs taken
from Vissers' thigh and labial areas and found DNA on the
thigh swab that matched both Vissers and a male donor. She
subsequently matched that male donor to the buccal sample
taken from Petitioner to a likelihood of 1 in 9.452
quadrillion African-American males. (Id.,
PageID.588-590.)
Janet
Hinesley testified that in 1998, she was at a party that
started at a pub and continued at the house of her friend,
Amy Rock. Petitioner was not invited, but he walked over. He
stayed until everyone else left, and he did not want to leave
when asked. Hinesley was staying overnight at her
friend's house. (Id., PageID.607-608.)
Petitioner introduced himself to Hinseley, and she learned
that he had gone to Allegan High School, as had she, but in a
different class. Petitioner repeatedly “put the moves
on [her], ” but she continuously refused.
(Id., PageID.609.) Everyone, including Hinesley, was
drinking a lot. At about 2:00 or 3:00 a.m., Rock and Hinesley
tried to get Petitioner to leave, so that they could go to
bed. Rock had to work in the morning. Petitioner said he was
leaving and slammed the door. Rock was in the bathroom, but
immediately came out and locked the door. Hinseley had
already laid down on the couch, where she planned to sleep.
After they believed Petitioner had left, Hinesley fell
asleep. She awoke later to find Petitioner on top of her,
penetrating her vagina with his penis. Hinesley told
Petitioner to stop and tried to push him off, and he stopped.
(Id., PageID.610-611.) She sat up and covered
herself with a blanket. Petitioner walked back and forth
saying, “[I]t's alright, right? Everything is cool
between us, right? . . . [Y]ou're not going to tell
anybody, right?” (Id., PageID.612.) Hinesley
said that she agreed with him, but she just wanted him to
leave. She did not tell anyone for a couple of days, as she
was embarrassed, feeling like she should have fought him
harder. (Id.) She finally told Rock, who wondered
how Petitioner got back in. Hinesely believed that Petitioner
had hidden under the bed, as Rock's boxes and coats that
had been under the bed were pushed back to the wall.
(Id., PageID.613-614.) Hinesley eventually told the
police and participated in the intial stages of prosecuting
Petitioner, but because her family did not support her, she
subsequently moved away from the area. (Id.,
PageID.615.) Hinesley knew who Vissers was since high school,
but she did not know Vissers well. (Id.,
PageID.615-616.) On cross-examination, Hinesley's
timeline and account were significantly impeached.
(Id., PageID.618-620, 629-630.) She testified to
having had a brain injury since that time and could not
remember what she told police. She reaffirmed, however, that
she remembered the details of being raped. (Id.,
PageID.631-632.)
After
hearing extensive arguments from counsel about the
admissibility of Petitioner's recorded interrogation with
the police, the court admitted the videotape of
Petitioner's questioning. (Id., PageID.640-661.)
Eventually, the court determined the video was admissible,
and, after discussion with his client, defense counsel waived
any objection to the presentation of Petitioner in handcuffs,
as they were hardly visible. (Id., PageID.657-661.)
The court indicated that it would give an instruction about
the brief mention in the recording of Petitioner being on
probation, but Petitioner waived that issue as well.
(Id., PageID.661-662.)
The
video of Petitioner's interview was played for the jury,
after certain tehnical problems were overcome. (Id.,
PageID.662, 683; T. Tr. II(B), ECF No. 6-7, PageID.450-474.)
Petitioner told the police that Vissers had invited him to
join her in bed and that they were cuddling. Vissers could
not sleep with the noise and people coming in. She ran out
and told people to be quiet. Somewhat later, according to
Petitioner, Vissers took a shower. Petitioner went out to the
front room for a while. (T. Tr. II(B), ECF No. 8-7,
PageID.453-454.) When Vissers got out of the shower,
Petitioner smoked a cigarette and they laid down together
again. They cuddled, but she still complained about noise. He
went out to get them to quiet down. Petitioner testified that
they cuddled and kissed. He was wearing boxers and she was in
pajamas, and the next thing he knew they were waking up in
the morning, with Vissers running late for work.
(Id., PageID.454-455.) Petitioner initially denied
sexual penetration, but he later indicated that he took off
his underwear to “grind” against her, and he
later admitted that Vissers' pants were down.
(Id., PageID.457, 467, 471-472.) He also eventually
admitted fingering her vagina. (Id., PageID.468,
470.) He acknowledged that his penis might have slipped in
and the examiners might find “pre-cum.”
(Id., PageID.470.) Still later in the interview,
Petitioner admitted that Vissers at some point told him,
“[N]ot right now[.]” (Id., PageID.473.)
Petitioner claimed that he immediately stopped. He also
stated that Vissers grabbed his penis and rubbed it once.
(Id.)
Patricia
Haist, the Director of Clinical Services for the YWCA
Counseling Center in Grand Rapids, testified as an expert in
the field of sexual assault dynamics. (T. Tr. II,
PageID.667.) Haist testified that 80% of sexual assaults were
perpetrated by offenders known to the victim. She also
indicated that only about 30% of such assaults were reported
to the police, due to feelings of shame, fear of reprisals,
and self-blame. (Id., PageID.667-668.) She added
that the trauma of assault also frequently affected memory.
(Id., PageID.670.)
Former
Allegan County Detective Patrick O'Reilly testified that
he had interviewed Petitioner in relation to Janet
Hinesley's allegations of sexual assault. Petitioner told
O'Reilly that he had been invited to the party and had
permission to spend the night. Petitioner stated that he had
hugged and kissed Hinesley, and that he had left shortly
thereafter. He denied having sexually penetrated her. (T. Tr.
III, ECF No. 8-9, PageID.693-694.)
The
defense introduced the testimony of Casey Plummer. Lisa
Vissers lived with Plummer for about two months. Plummer
testified that she met Petitioner through Vissers, while they
were at the Family Dollar. (Id., PageID.709-710.) On
the night of September 29 to 30, 2011, she had a party at her
house that started about the time Vissers got out of work.
The party included Petitioner, Jimmy and a male friend,
Vissers, and Plummer. Everyone was drinking, though Vissers
only had one beer. (Id., PageID.711.) Petitioner had
come to the house twice before while Vissers was at work.
Plummer invited him in and talked with him one time and
refused to let him in another time. (Id.,
PageID.712, 732-733.) Plummer testified that Vissers said
that she knew Petitioner in high school, but the response was
stricken and the jury was told to ignore it. (Id.,
PageID.712-713.) Petitioner and Plummer started socializing
before Vissers got out of work. Vissers' son came later.
She left with one of the others to get more beer.
(Id., PageID.714-715.) Vissers was talking with
Petitioner and playing on the computer. Plummer went to bed
at about 2:00 or 2:30. Plummer knew that Petitioner was in
Vissers's room, because she walked in at about that time
and saw them sitting on Vissers' bed, fully dressed,
talking, and she joined them briefly. (Id.,
PageID.715-716.) She saw no kissing or cuddling.
(Id., PageID.728.) Plummer went to bed at about 3:00
or 4:00 a.m. Vissers' son slept overnight in
Plummer's bed, but they were not dating. (Id.,
PageID.716.) Vissers never woke Plummer, but Plummer left for
work early in the morning. Both Petitioner and Jimmy were
still in the trailer when she left. (Id.,
PageID.717.) Plummer admitted yelling at Petitioner later
that day, because she did not realize that he had stayed in
the house overnight. (Id., PageID.728, 740-741.)
Plummer testified that she had not spoken to Vissers since
the night of the party, because she no longer liked her.
(Id., PageID.729.) Plummer denied doing drugs that
evening, but then admitted that she did not remember
everything, as she was tipsy. (Id., PageID.736-737.)
She also admitted that she took psychotropic medications for
depression, but did not take them that night because she was
drinking. (Id., PageID.724-725.)
The
court asked additional questions of Plummer outside the
presence of the jury, in which she stated that she did not
believe in the rape because Vissers liked to start problems
with people, as she did with Plummer's cousin when she
dated him. (Id., PageID.740-742.) The court then
heard extensive arguments outside the presence of the jury
about the admissibility of Plummer's theft convictions in
2008 and 2009 on crimes of dishonesty, and her accepted plea
of not guilty by reason of insanity in 2010, for which she
was not convicted but was involuntarily committed.
(Id., PageID.744-756.) The court ruled that the
convictions were admissible. (Id., PageID.757.) The
court ruled that it had permitted the defense's late
addition of Plummer as a witness on the first day of trial
and that it was not going to prejudice either party at this
juncture because they had no ability to do a complete
investigation. The court found that Plummer had waived her
HIPPA privilege by her prior statements to police that she
had schizophrenia, that she had not taken her medications,
and that she was hearing voices. The court also held that the
privilege was waived by her plea of not guilty by reason of
insanity and the court's finding to that effect.
(Id., PageID.762-764.) Before the jury, Plummer at
first denied hearing voices when not taking her medication,
but she admitted to the 2010 statements to police.
(Id., PageID.766-767.) She also acknowledged
convictions in both 2008 and 2009 on two different thefts of
a motor vehicle. (Id., PageID.767.)
John
Beck testified that he was with Petitioner on September 29,
2011, and they went to the house of a friend of Petitioner.
They arrived at about 8:00 p.m., and only one woman was there
at first. A second woman arrived, followed by her son.
(Id., PageID.771-772.) He left the house at 2:00
a.m. Everyone was drinking, except the second woman. During
the course of the night, he left the trailer twice. First, he
and the first woman left the house to get money from his
apartment and buy a 12-pack of beer. They were gone for 45
minutes. The second time, he, the first woman, and the second
woman's son went to get a 24-pack of beer at the Village
Market. They were gone for 15 or 20 minutes. (Id.,
PageID.773-775.) The second woman and Petitioner sat next to
one another on the couch. At about 9:00 or 9:30 p.m., the
woman got up, followed by Petitioner, and they went into a
room and shut the door. They separately came out of the room
multiple times. Beck saw Petitioner in the hallway right
before he left at 2:00 a.m. He had not seen the woman for 30
or 45 minutes. (Id., PageID.775-776.) The older
woman and Petitioner seemed friendly, but he saw no kissing
or other physical contact. (Id., PageID.782.) Beck
...