United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS AND DENYING
CERTIFICATE OF APPEALABILITY
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on petitioner's application
for a writ of habeas corpus, in which he challenges his
convictions for two counts of first-degree criminal sexual
conduct and one count of second-degree criminal sexual
conduct. Petitioner raises the following claims: trial and
appellate counsel rendered ineffective assistance, incorrect
jury instruction on second-degree criminal sexual conduct,
trial court abused its discretion in denying request for
instruction of assault with intent to commit first-degree
criminal sexual conduct, the prosecutor engaged in
misconduct, and petitioner's convictions violated the
Double Jeopardy Clause. Respondent has filed an answer
arguing that four of petitioner's claims are procedurally
defaulted and that all of the claims are meritless. For the
following reasons, the Court shall deny the petition.
convictions arise from the sexual assault of petitioner's
stepdaughter, L.F. He was tried before a jury in Wayne County
Circuit Court. L.F. testified that, in 2007, when she was
nine years old, she lived with her parents, brother and
sister in Taylor, Michigan. Her mother left home for several
months in 2007. During that time period, the house was dirty
and the children were not tended to. In May 2007, L.F. and
her siblings were taken by police to live with their
grandmother. Approximately ten months later, L.F. told her
grandmother that sometimes in the middle of the night her
stepfather woke her, took her out of her bedroom, and made
her put her mouth on his private parts. L.F. testified that
this happened more than once but could not recall the precise
dates when this occurred or specifically how many times. She
also testified that he penetrated her “private
part” with his “private part” and that this
was painful. 7/23/2008, Tr. at 40, ECF No. 18-6, Pg. ID 348.
She testified that this happened more than once, but she did
not know how many times.
Lee Sparks, L.F.'s grandmother and petitioner's
mother, testified that L.F. and her brother and sister came
to live with her on May 29, 2007. In March 2008, L.F. asked
to speak to Sparks privately. L.F. then told Sparks that
petitioner used to wake her up from time to time in the
middle of the night and make her lick his private part. The
next morning, Sparks contacted the social worker from Child
Protective Services who was handling the children's
temporary placement in her home. Sparks took L.F. to Kids
Talk for an interview on March 18, 2008, and, the following
day, took her to the hospital for an exam.
did not present any witnesses in his defense. The jury found
him guilty of two counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(a), and one
count of second-degree criminal sexual conduct, Mich. Comp.
Laws § 750.520c(1)(a). On August 20, 2008, he was
sentenced to concurrent prison terms of ten to fifteen years
for each first-degree criminal sexual conduct conviction and
nine to fifteen years for the second-degree criminal sexual
filed an appeal of right in the Michigan Court of Appeals
raising the following claims: (i) the trial court improperly
admitted L.F.'s statement to her grandmother; and (ii)
the trial court's jury instruction directed a verdict of
guilty for second-degree criminal sexual conduct. The
Michigan Court of Appeals affirmed petitioner's
convictions. People v. Werstein, No. 287471, 2009 WL
5194474 (Mich. Ct. App. Dec. 17, 2009). The Michigan Supreme
Court denied leave to appeal. People v. Werstein,
486 Mich. 904 (Mich. 2010).
filed a habeas corpus petition in this Court and, on the same
date, filed a motion to stay to allow him to exhaust
unexhausted claims in state court. The Court granted the
motion to stay.
filed a motion for relief from judgment in the trial court,
raising the following claims: (i) ineffective assistance of
appellate counsel; (ii) the trial court erred in denying
request for instruction on assault with intent to commit
first-degree criminal sexual conduct; (iii) prosecutorial
misconduct; and (iv) violation of Double Jeopardy Clause. The
trial court denied the motion. See 11/8/11 Order
(ECF No. 18-11). Petitioner's applications for leave to
appeal were denied by the Michigan Court of Appeals,
People v. Werstein, No. 309944 (Mich. Ct. App. Oct.
24, 2012), and by the Michigan Supreme Court. People v.
Werstein, 494 Mich. 854 (Mich. 2013).
returned to this Court and filed an amended petition. The
Court ordered the case reopened and directed respondent to
file an answer, which respondent has done.
raises the following claims in his amended petition:
I. Ineffective assistance of trial counsel for failure to
object to the admission of hearsay testimony.
II. Trial Court's jury instruction on 2nd degree CSC
amounted to a directed verdict of guilt.
III. Ineffective Assistance of Appellate Counsel for failing
to raise several issues.
IV. Abuse of discretion by trial judge for denying requested
lesser offense instruction of assault with intent to commit
1st Degree CSC.
V. Prosecutorial Misconduct for making disparaging remarks
directed at defendant, for making comments on witness
credibility with no evidence to support assertion, for
violating defendant's Sixth Amendment Right to
confrontation by using statement of non-testifying witness.
VI. Conviction of two counts of 1st Degree CSC and one count
of 2nd Degree CSC violate both State and Federal protections
against Double Jeopardy.
claims are reviewed against the standards established by the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (“AEDPA”). The
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 ...