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Hoover v. Trierweiler

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

April 9, 2018

BILLY HOOVER, Petitioner,
v.
TONY TRIERWEILER, Respondent,

          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 PAUPERIS

          THOMAS L. LUDINGTON UNITED STATES DISTRICT JUDGE.

         On June 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.

         I.

         This 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 Cir. 2009):

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).

         Petitioner's 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).

         In his 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 case.
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 assessment.
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. § 750.85].
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 process rights.
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 non-treatment.
VIII. Petitioner's Sixth Amendment right to counsel was violated when counsel was absent from the second half of the preliminary examination.
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).

         II.

         28 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:

         An 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; or
(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.

         A 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).

         The 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.[1] 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.

         III.

         A.

         Petitioner 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 irrelevant:

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 ...

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