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Butler v. Mackie

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

May 9, 2018

DEMAUN BUTLER, Petitioner,
v.
THOMAS MACKIE, Respondent.

          MEMORANDUM AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY

          AVERN COHN UNITED STATES DISTRICT JUDGE

         I. Introduction

         This is 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.

         II. Facts and Procedural History

         Petitioner's 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 residence.
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 were called.
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 complainant's bedroom.

People v. Butler, No. 322690, 2015 WL 8538749, *1-2 (Mich. Ct. App. Dec. 10, 2015) (unpublished).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals raising the same claims presented on habeas review.

         The 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).

         Petitioner thereafter filed his federal habeas petition. He raises the following claims:

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.

         III. Standard of Review

         The 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:

         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 ...


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