United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING THE AMENDED PETITION FOR
WRIT OF HABEAS CORPUS, AND DECLINING TO ISSUE A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
19, 2017, Petitioner Billy Hoover filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. ECF No.
1. On October 2, 2017, Hoover filed a motion for leave to
file an amended petition. ECF No. 6. That motion was granted.
Petitioner was convicted by a jury in the Saginaw County
Circuit Court of first-degree home invasion, Mich. Comp Laws
§ 750.110a(2); torture, Mich. Comp Laws § 750.85;
aggravated stalking, Mich. Comp Laws § 750.411i; and
being a fourth felony habitual offender, Mich. Comp Laws
§ 769.12. Petitioner was sentenced to concurrent
sentences of five to twenty years on the home invasion
conviction, twenty to thirty years on the torture conviction,
and fifteen months to five years on the stalking conviction.
Petitioner alleges that he was denied the right to present a
defense, that he was denied the effective assistance of trial
counsel, that the evidence was insufficient to convict, that
the judge violated the Ex Post Facto clause in
assessing fees at sentencing pursuant to the Crime
Victim's Rights Act, that the prosecutor committed
misconduct, and that appellate counsel was ineffective. The
Respondent has filed an answer to the petition, asserting
that the claims are procedurally defaulted and/or lack merit.
For the following reasons, the amended petition, ECF No. 7,
will be denied.
Court recites verbatim the relevant facts relied upon by the
Michigan Court of Appeals, which are presumed correct on
habeas review pursuant to 28 U.S.C. § 2254(e)(1).
See Wagner v. Smith, 581 F.3d 410, 413 (6th
Defendant assaulted the victim, with whom he had had an
unstable dating relationship, on September 30, 2010. She
testified that defendant called her and stated that her house
was damaged and needed repair. She drove to her house and
discovered that the front door was “jammed” and
that the lock was no longer functional. She called
defendant's mother to complain that he had damaged her
house. During this conversation, defendant entered the
victim's house uninvited. Defendant spoke with his mother
on the telephone and decided to leave the house. About 60 to
90 minutes later, defendant returned to the victim's
house uninvited with two friends. The victim testified that
she and defendant got into an argument and that defendant
grabbed her shirt and exposed her breast to his friends.
Defendant then removed a knife from her kitchen and stated
his intent to slash her tires. Defendant and his two friends
went outside, and the victim remained inside her house to
call the police. After the victim called the police,
defendant reentered her house. The two continued arguing, and
at some point defendant squeezed the victim's neck in a
“choke hold” from behind. The victim became light
headed and collapsed to the floor. Defendant then held a
pillow against her face while telling someone on the
telephone that he was going to kill the victim. The police
arrived at the victim's house during the assault, thereby
bringing the assault to a sudden end. The responding officer
testified that the victim was lying on the floor struggling
to breathe when he arrived. The victim eventually regained
her breath and identified defendant as her assailant. The
officer immediately arrested defendant.
At trial, defendant called his two friends as witnesses. Each
friend denied the victim's version of the events,
testifying that she was often “jealous” of
defendant. Defendant's theory of the case was that the
victim fabricated the assault because of a heated
disagreement between the two at a gas station on the
afternoon of September 30.
People v. Hoover, No. 308115, 2013 WL 45647, at * 1
(Mich. Ct. App. Jan. 3, 2013).
conviction was affirmed on appeal. Id., leave denied
495 Mich. 1004, 846 N.W.2d 388 (2014). Petitioner filed a
post-conviction motion for relief from judgment, which was
denied. People v. Hoover, No. 10-035183-FC (Sept.
30, 2015). The Michigan appellate courts denied the
Petitioner leave to appeal. People v. Hoover, No.
331914 (Mich. Ct. App. July 25, 2016); leave denied
500 Mich. 1000, 895 N.W.2d 511 (2017).
amended habeas petition, Petitioner seeks habeas relief on
the following grounds:
I. Petitioner's due process right to present a defense
was violated where the trial court excluded a letter written
by the complainant to defense counsel indicating that she did
not want petitioner prosecuted. The decision to exclude this
letter also violated petitioner's right to confrontation
where defense counsel was unable to effectively impeach the
witness regarding the letter and the defense theory of the
II. Petitioner was denied his Sixth Amendment right to the
effective assistance of counsel where counsel failed to
subpoena the record custodian to authenticate the
complainant's phone records, which would have
substantially contradicted the complainant's story and
supported the defense theory that complainant had fabricated
the alleged incident.
III. The trial court violated the Ex Post Facto Clauses of
both the Federal and Michigan Constitutions when the trial
court assessed a statutory $ 130.00 Crime Victim's Rights
Act fee when the statute in effect at the time of the
commission of the sentencing offense provided for a $ 60.00
IV. Petitioner's due process rights were violated where
there was insufficient evidence presented to show that the
victim suffered a substantial alteration of mental function
to sustain a conviction of torture. [Mich.Comp.Laws Ann.
V. Petitioner's due process rights were violated where
there was insufficient evidence presented to show that the
petitioner “broke into a dwelling” to
sustain a conviction of 1st degree home invasion.
[Mich.Comp.Laws Ann. § 750.110a].
VI. The prosecutor discussed prejudicial evidence during her
opening statements but failed to produce evidence to support
the statements, thereby violating petitioner's due
VII. Petitioner's Sixth Amendment right to counsel was
violated when counsel failed to investigate and obtain the
medical record pertaining to medical treatment or
VIII. Petitioner's Sixth Amendment right to counsel was
violated when counsel was absent from the second half of the
IX. Petitioner's Sixth Amendment right to the effective
assistance of appellate counsel was violated when appellate
counsel failed to raise a claim of insufficient evidence to
convict of first degree home invasion on direct appeal,
thereby establishing the requisite “cause” of
Mich. Ct. Rule 6.508(D)(3)(a), and as a result petitioner was
prejudiced by the more onerous standard of review contained
within Mich.Ct.Rule 6.508(D).
U.S.C. § 2254(d), as amended by The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), imposes the
following standard of review for habeas cases:
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the
adjudication of the claim-
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
at 410-11. “[A] state court's determination that a
claim lacks merit precludes federal habeas relief so long as
‘fairminded jurists could disagree' on the
correctness of the state court's decision.”
Harrington v. Richter, 562 U.S. 86, 101 (2011)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his or her claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Court notes that the Michigan Court of Appeals reviewed and
rejected the petitioner's first claim under a plain error
standard because he failed to preserve the issue as a
constitutional claim at the trial court level. The AEDPA
deference applies to any underlying plain-error analysis of a
procedurally defaulted claim. See Stewart v.
Trierweiler, 867 F.3d 633, 638 (6th Cir. 2017). The
petitioner raises nine claims in his petition.
first argues that he was denied his right to present a
defense when the judge refused to permit Petitioner to
question the victim about a letter that she wrote to defense
counsel on July 8, 2011, in which the victim indicated that
she no longer wanted to prosecute Petitioner. The trial judge
excluded the letter on the grounds that it was irrelevant.
(Tr. 10/27/11, pp. 72-75). The Michigan Court of Appeals
rejected the claim, first finding that the letter was
Here, the letter indicated that the victim did not want to
continue the prosecution against defendant. Defendant argues
that the letter was relevant because it supported the defense
theory that the victim had fabricated the charges out of
jealousy or spite and also contradicted the victim's
trial testimony because someone who had endured what she
claims to have occurred would not likely ask the prosecutor
to dismiss the case. A witness's credibility is a
material fact of consequence to the determination of an
action. However, the trial court did not abuse its discretion
by excluding the victim's letter in this instance because
the letter was not “probative.” It did not make
the victim's credibility more or less probable. The
letter did not indicate that the alleged assault never
occurred. Rather, the letter indicates that the victim
believed that the personal costs of prosecuting defendant
outweighed any personal benefit that she may receive from his
prosecution. The victim's individual view of the nature
of criminal proceedings bears no relationship to her
credibility as a witness. Moreover, the victim's mention
of a personal protection order suggests that the victim still