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Werstein v. Rapelje

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

April 25, 2018

KEVIN WERSTEIN, 699474, Petitioner,
v.
LLOYD RAPELJE, Respondent.

          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

         This 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.

         I. Background

         Petitioner's 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.

         Sharon 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.

         Petitioner 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 conduct conviction.

         Petitioner 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).

         Petitioner 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.

         Petitioner 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).

         Petitioner 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.

         Petitioner 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.

         II. Legal Standard

         Petitioner's 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 AEDPA provides:

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 ...

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