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Fitzpatrick v. Nagy

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

May 18, 2018

VICTOR DEVON FITZPATRICK, Petitioner,
v.
NOAH NAGY, Respondent.

          OPINION

          Janet T. Neff, United States District Judge.

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed because it fails to raise a meritorious federal claim.

         Discussion

         I. Factual and Procedural Background

         Petitioner Victor Devon Fitzpatrick presently is incarcerated with the Michigan Department of Corrections at the Lakeland Correctional Facility (LCF) in Coldwater, Branch County, Michigan. A Kalamazoo County Circuit Court jury found Petitioner guilty of two counts of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b(1)b(b), and two counts of second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws § 750.520c(1)(b). He currently is serving prison terms of 27 ½ to 50 years' imprisonment on each of the CSC-I convictions and terms of 15 to 30 years' imprisonment on each of the CSC-II convictions.

         The following facts are taken from the opinion of the Michigan Court of Appeals:

On April 4, 2015, defendant was out late drinking in Kalamazoo, Michigan, with his cousin Makella Potts, and her friend. At some point that night, defendant went to Makella's house with Makella to go to sleep. Makella decided to go back out and left defendant on the couch in her living room. Their aunt, Carla Potts, was spending the night at Makella's on a separate couch in the living room. The victim, defendant's 14-year-old cousin was also staying in Makella's house that night. Before defendant came back for the night, the victim watched television until 1 a.m. with Carla, and then went to bed with her nieces in a first-floor bedroom.
At some point during the night, the victim awoke to defendant rubbing his penis against her butt. The victim told defendant to stop, but he did not say anything and continued to rub against the victim for another couple of minutes. When defendant stopped, he rolled the victim onto her back, got on top of her, and took off her pants. Defendant then removed his pants and put his penis in the victim's mouth and moved it up and down. After defendant removed his penis from the victim's mouth, he put it into her vagina. Defendant then pushed the victim's bra down and began licking her breasts while his penis was still in her vagina. This continued until there was a knock on the door, at which point defendant stopped, put on his clothes, and left.
The next day, the victim told Makella what happened. The victim was eventually taken to the YWCA, where a nurse performed a physical examination. As part of the exam, the nurse collected the victim's medical history, including the reason for the victim's visit to the YWCA that day. Over defendant's objection, the nurse testified at trial that the victim told her that while the victim was asleep, a man came behind her and rubbed his penis on her butt, then got on top of her and put his penis in her mouth, then in her vagina. The nurse testified that this continued until the man heard a knock on the door, at which point he left. After hearing the victim's story, the nurse performed a physical examination of the victim and found a ¾-inch abrasion to the victim's genital area on the posterior fourchette, which was consistent with the events that the victim described. Samples were taken from the areas that the victim told the nurse that her assailant had touched, but no saliva or semen was found in any of the samples.
Also at defendant's trial, the prosecution introduced evidence of a sexual assault from 2006 in which defendant was accused of sexually assaulting his 18-year-old stepcousin. In that instance, the victim was sleeping on a couch at Makella's apartment. Defendant came into Makella's apartment after the victim had already fallen asleep, took the victim's pants off, and put his penis into her vagina. When the victim woke up, defendant stopped. The victim quickly put her pants back on and went to Makella's room to call the police, at which point defendant fled.

(Mich. Ct. App. Op., No. 330086, slip op. at 1-2, http://publicdocs.courts.mi.gov/opinions/final/ coa/20170216 c33008641 330086.opn.pdf (last visited May 15, 2018).[1]

         On October 10, 2015, following a three-day trial, the jury found Petitioner guilty of two counts of CSC I and two counts of CSC II. On November 2, 2015, the court sentenced Petitioner as a fourth-offense felony offender, Mich. Comp. Laws § 769.12, to two prison terms of 30 to 50 years on the CSC-I convictions and two terms of 15 to 30 years on the CSC-II convictions. Petitioner moved for resentencing on February 25, 2016. On April 4, 2016, Petitioner was resentenced, and Petitioner's sentences on the CSC-I convictions were reduced to 27 ½ to 30 years each.

         Petitioner timely appealed his convictions to the Michigan Court of Appeals, raising ...


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