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Lewis v. Trierweiler

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

March 21, 2018

TERRELL D. LEWIS, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS (ECF #1), (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) GRANTING PERMISSION TO

          MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE .

         Petitioner Terrell D. Lewis is a state prisoner in the custody of the Michigan Department of Corrections. On August 24, 2012, a jury in the Wayne County Circuit Court convicted Lewis of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(e), and kidnapping, MICH. COMP. LAWS § 750.349. The state trial court then sentenced Lewis to two concurrent terms of 17-to-35 years of imprisonment and lifetime electronic monitoring.

         On August 2, 2017, Lewis filed a petition for a writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) Lewis raises two claims in his petition: (1) he was deprived of the effective assistance of counsel when his lawyer failed to object to testimony by police officers that they were looking for a serial rapist, and (2) the state trial court erroneously sentenced him to lifetime electronic monitoring. (See id.)

         The Court has reviewed Lewis' claims and concludes that he is not entitled to relief. Therefore, for the reasons stated below, the Court DENIES Lewis' petition. The Court further DENIES Lewis a certificate of appealability. However, the Court GRANTS Lewis permission to appeal in forma pauperis.

         I

         The charges against Lewis arose from allegations that he used a social-networking website called “Mocospace” to lure the victim, Elizabeth Tipton, to an abandoned house where he raped her.

         Prior to trial, the prosecutor filed a motion to introduce other-acts evidence relating to the sexual assault of two other women. The prosecutor asserted that Lewis contacted these other women on the same website, lured them to the same abandoned house, and sexually assaulted them in a similar manner. The state trial court ruled that the evidence would be admissible under Michigan Rule of Evidence 404(b) if Lewis chose to assert a defense of consent. (See ECF #7-5 at Pg. ID 271-73.)

         At trial, Tipton testified that sometime during November of 2011 she began communicating with an individual identifying himself as “Mr. Black 313” on Mocospace. (ECF #7-19 at Pg. ID 511-13.) Tipton identified “Mr. Black 313” as Lewis. (See id.) The two eventually exchanged phone numbers. (See Id. at Pg. ID 514.) In the early morning hours of December 25, 2011, Lewis offered to pay Tipton $200 for sex, and he texted her an address on Mettetal Street in Detroit. (See Id. at Pg. ID 514-16.)

         Tipton arrived at the address in her car, and Lewis greeted her outside. (See Id. at 516-17.) It was still dark, but the area was lit by a flood light. (See Id. at Pg. ID 519.) As Tipton walked up onto the porch and through the door, Lewis grabbed her by the neck, put something that felt like a gun to her back, and forced her into the house. (See Id. at Pg. ID 520-24.)

         Tipton testified that Lewis said, “Do you feel this in your back? I'd advise you to do what I tell you to do. I just want the pussy.” (Id. at Pg. ID 522.) Lewis pushed her onto a couch and took off her clothes. (See Id. at Pg. ID 524.) Lewis then penetrated her vagina with his penis. (See Id. at Pg. ID 533.) After he finished, Lewis took Tipton's purse and ran out of the house. (See Id. at Pg. ID 535.)

         Tipton returned home and told her sister what happened. (See Id. at Pg. ID 538.) Tipton's mother then took Tipton to the police station and later to the hospital. (See Id. at Pg. ID 539.)

         In an effort to locate Lewis, Tipton posted a fake profile on another social networking website called “Tag.” (See Id. at Pg. ID 545-46.) She eventually found a photograph of Lewis on that website that was the same one Lewis used for his Mocospace profile. (See Id. at Pg. ID 548.) Lewis contacted Tipton's fake profile and offered to pay $150 in exchange for sex. (See Id. at Pg. ID 549-50.) He then directed Tipton to the same area he had directed her to before. (See Id. at Pg. ID 552.) Instead of meeting Lewis at that location, Tipton printed copies of Lewis' profile photos and gave them to the police. (See Id. at Pg. ID 552-53.) The police thereafter arrested Lewis. (See Id. at Pg. ID 553.)

         After Lewis was arrested, Tipton failed to identify him in a photo array. (See Id. at Pg. ID 555.) Subsequently, however, she picked Lewis out at a live line-up. (See Id. at Pg. ID 556-58.)

         A second woman, Josalyn Jackson, testified that she used Mocospace to engage in prostitution. (See Id. at Pg. ID 649.) Jackson said that on April 6, 2012, she went to 14550 Mettetal Street to meet a man she had communicated with on Mocospace. (See Id. at Pg. ID 645, 654.) She later identified the man as Lewis. (See id.) Lewis offered to pay her $200 for sex. (See Id. at Pg. ID 652-53.) When she went inside the house, Lewis put his arm around her neck. (See Id. at Pg. ID 661-62.) It felt to Jackson like Lewis pushed his hand against her back as if he had a gun. (See id.) Lewis then pushed Jackson over the couch and took her cell phone and purse. (See Id. at Pg. ID 664-66.) He also pulled down her pants and penetrated her vagina with his penis. (See Id. at Pg. ID 666-68.) Lewis then ran from the house with Jackson's purse. (See Id. at Pg. ID 671.) Jackson followed him outside and yelled that she had just been raped. (See Id. at Pg. ID 672.)

         Jackson later spoke to the police and had a rape kit performed at the hospital. (See Id. at Pg. ID 673-76.) Jackson did not initially tell the police about agreeing to have sex for money because she was embarrassed. (See Id. at Pg. ID 676-77.)

         Neither Jessica Lyons (the other similar-acts witness) nor Lewis testified at trial.

         Detroit Police Officer William Brewster testified that he assisted Officer Jose Ortiz canvassing the neighborhood around Mettetal Street. (See ECF #7-11 at Pg. ID 732.) During direct examination the following exchange occurred:

Q: Do you recall what you were canvassing for?
A: We were canvassing the neighborhood for a serial rapist.

(Id. at Pg. ID 732.)

On redirect examination, the following exchange ...

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