Gowens v. Burt

          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 ...