United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING THE PETITION FOR A WRIT
OF HABEAS CORPUS AND DENYING A CERTIFICATE OF
COHN UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2254. Michigan prisoner
Demaun Butler (“Petitioner”) was convicted at a
bench trial of first-degree home invasion, M.C.L. §
750.110a(2), and second-degree criminal sexual conduct,
M.C.L. § 750.520c(1)(c) (sexual contact during the
commission of a felony). He was sentenced as a fourth
habitual offender, M.C.L. § 769.12, to concurrent terms
of 11 to 20 years imprisonment and 9 to 15 years imprisonment
on those convictions in 2014. Petitioner raises claims
concerning the non-production of a witness/due diligence and
the admission of that witness's prior preliminary
examination testimony, the sufficiency of the evidence to
support his convictions, and the accuracy of his presentence
information report. For the reasons that follow, the petition
will be denied for lack of merit.
Facts and Procedural History
convictions arise from the sexual assault of a woman in her
home in Detroit, Michigan on New Year's Day in 2014. The
Michigan Court of Appeals described the relevant facts, which
are presumed correct on habeas review, 28 U.S.C. §
2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th
Cir. 2009), as follows:
This case arises from an incident occurring at the home that
the complainant shared with her three children and her
roommate, Samantha Antisdel. On the evening of the incident,
the complainant and her three children; Samantha and her four
children (including her son, 16-year-old Jordan Antisdel);
Jordan's girlfriend, Stacy Grimm; and Samantha's and
Jordan's cousin, “Steve, ” were celebrating
the New Year's holiday at the complainant's
The complainant became intoxicated and “passed
out” around 10:00 p.m. that evening. As a result, she
has no recollection of the evening's events independent
from the stories that she heard from other people. However,
early in the morning, she awoke in her bedroom “feeling
violated” and walked out to the living room to observe
Samantha, Jordan, Steve, and Stacy “beating up” a
complete stranger, who was lying on the floor. Samantha and
Jordan would later explain that the stranger was defendant,
and that they had caught defendant “sexually
molesting” the complainant while she was unconscious.
That morning, though, the complainant did not see
defendant's face as she watched him break free from his
assailants and run naked from her house.
At trial, Jordan testified that he had met defendant, a
stranger, at a party store on New Year's Eve and invited
him back to the complainant's house to hang out. He said
defendant agreed to come and played cards with Samantha and
Steve for an hour or so before Samantha suggested that they
go to a neighbor's house. Samantha, who did not appear at
trial but testified at the preliminary examination, confirmed
that defendant was with them that evening and that he
accompanied her, Jordan, Stacy, and Steve to a neighbor's
house. However, she claimed that defendant was the one to
suggest that they visit the neighbor's house. Jordan said
that they were at the neighbor's home for about 15
minutes, while Samantha thought it was approximately an hour,
but they both agreed that, at some point, they realized that
defendant was no longer with them.
When they returned to the complainant's home, all of the
children were sleeping soundly in the living room. However,
minutes later, Samantha's trip to the bathroom was
interrupted when she looked through the complainant's
open bedroom door and saw defendant inside. She screamed, and
Jordan and Stacy rushed to the bedroom. Jordan and Samantha
both testified that they saw defendant lying on top of or
next to the complainant with his pants pulled down and his
genitals between the complainant's legs while making a
thrusting motion. The complainant's underwear had been
removed and was lying on the floor. They pulled defendant
away from the complainant and into the living room, where a
physical altercation ensued. The fight was underway when the
complainant awoke and emerged from the bedroom. During the
altercation, Samantha and Jordan removed defendant's
clothing, intending to preserve evidence of his DNA.
Defendant ultimately left the house naked, and the police
Defendant testified on his own behalf at trial and maintained
his innocence. He indicated that Jordan had stopped him while
he was at the party store and asked him to find some cocaine.
Defendant brought cocaine back to Samantha at the
complainant's house and stayed with the group for a few
hours while she used it. According to defendant, they went to
his acquaintance's house later that evening to acquire
more cocaine at Samantha's request and returned to the
complainant's home together. Once there, Samantha
demanded her money back for the first batch of
“bad” cocaine, and defendant refused.
Subsequently, the group physically attacked him and stole his
clothes, so he threatened them with future violence. He then
fled after Samantha told him to leave.
At trial, his defense theory was that Samantha and Jordan
were fabricating the sexual assault in order to protect
themselves from defendant's violent threats.
Additionally, he claimed that he never returned to the
complainant's home on his own and was never inside the
People v. Butler, No. 322690, 2015 WL 8538749, *1-2
(Mich. Ct. App. Dec. 10, 2015) (unpublished).
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising the same
claims presented on habeas review.
court denied relief on those claims and affirmed his
convictions, but remanded for the ministerial task of
correcting the presentence report. Id. at *2-9.
Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Butler, 499 Mich. 970 (2016).
thereafter filed his federal habeas petition. He raises the
I. The trial court erred in finding that the police and
prosecutor exercised due diligence to procure key prosecution
witness, Samantha Antisdel, for trial and the admission of
Antisdel's preliminary examination testimony in lieu of
her live testimony violated his constitutional right to
confrontation and was not harmless error.
II. The evidence at trial was insufficient to support his
convictions for first-degree home invasion and second-degree
criminal sexual conduct.
III. The presentence report must be corrected where it
contains information that directly conflicts with the
testimony of the prosecution's own witness and the trial
court's express findings of fact and the trial court did
not consider that inaccurate information at sentencing.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., sets forth the standard of review that
federal courts must use when considering habeas petitions
brought by prisoners challenging their state court
convictions. The AEDPA provides in relevant part:
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 ...