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Bennett v. Jackson

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

May 22, 2018

FRANK BRIAN BENNETT, Petitioner,
v.
SHANE JACKSON, [1] Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          HONORABLE SEAN F. COX UNITED STATES DISTRICT COURT JUDGE

         Frank Brian Bennett, (“Petitioner”), incarcerated at the Carson City Correctional Facility in Carson City, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C.§ 2254. In his pro se application, petitioner challenges his conviction for four (4) counts of third-degree criminal sexual conduct (CSC III), M.C.L.A. § 750.520(1)(b).

         For the reasons stated below, the petition for a writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner was convicted following a jury trial in the Oakland County Circuit Court. This Court recites verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009):

[B]ennett committed four counts of CSC III, two involving penetration of the victim's vagina and two premised on fellatio with the victim. The victim testified that defendant Bennett physically forced her to perform fellatio on at least five occasions, and forced the victim to have sexual intercourse with him on at least five occasions. The victim's testimony describ[ed] the forced penetrations, together with her description of consistent acts of physical abuse by defendant Bennett during the entirety of the victim's approximately five-week residency in the cabin[.]

People v. Bennett, No. 299829, 2012 WL 6097317, at *4 (Mich. Ct. App. Dec. 6, 2012).

         Petitioner's conviction was affirmed on direct appeal. Id.; lv. den. 494 Mich. 870, 832 N.W.2d 212 (Mich. 2013).

         Petitioner filed a post-conviction motion for relief from judgment, which was denied. People v. Bennett, No. 10-230356-FH (Oakland Cty.Cir.Ct., July 10, 2014). The Michigan appellate courts denied petitioner leave to appeal. People v. Bennett, No. 324013 (Mich.Ct.App. Dec. 11, 2014); lv. den. 498 Mich. 883, 869 N.W.2d 568 (2015).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. The “aiding and abetting” jury instruction given by the Court was improper, was based on a clearly erroneous fact determination [that Defendant-Appellant was “charged” with aiding/abetting], and denied Defendant-Appellant his rights of due process under the state and federal constitutions.
II. The trial court's supplemental instruction to the Jury regarding its observations of Defendant-Appellant's conduct in the courtroom was plain error, and denied Defendant-Appellant his due process rights under the Michigan and United States Constitutions.
III. The trial court's failure to rule pre-trial on Defendant-Appellant's intention to present evidence of the alleged victim's prior false and unsubstantiated allegations of sexual abuse, and limitation during trial of Defendant-Appellant's ability to examine witnesses with respect to those false and unsubstantiated allegations was an abuse of discretion and denied to Defendant his due process right to present a defense.
IV. A verdict should have been directed for Defendant-Appellant on each count of CSC III because the prosecutor failed to present evidence sufficient to establish every element of the offenses beyond a reasonable doubt.
V. The Court should reverse the jury's verdict in this case as against the great weight of the evidence because the record clearly preponderates against a guilty verdict.
VI. Defendant was prejudiced by the prosecutor's improper comments made during voir dire.
VII. Defendant-Appellant's trial counsel was constitutionally ineffective by failing to object to the trial court's decision to tell the jury that it was permitted to utilize non-evidence in determining Defendant-Appellant's guilt or innocence.
VIII. Defendant-Appellant was denied his due process right to a fair trial by the cumulative impact of the deficiency of his representation, the improper instruction on aiding and abetting, the trial court's improper and grossly prejudicial response to the jury's question about Defendant-Appellant's courtroom conduct, and the prosecutor's efforts to taint the jury during voir dire.
IX. The trial court's interpretation of Offense Variable 8 as to asportation was legally incorrect and, on de novo review, this matter should be remanded for resentencing.
X. Trial counsel was ineffective during pre-trial stages of the proceedings making their performance deficient, thus violating defendants [sic] state and constitutional rights to effective trial counsel.
A. Failure to perform a proper investigation or present a defense.
B. Trial counsel was ineffective for not filing proper pretrial motions during a critical phase in the proceedings
XI. Appellate counsel provided ineffective assistance of counsel by neglecting to raise these issues on direct appeal and satisfies the “Good Cause” requirement.

         II. Standard of Review

         28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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 Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

         A decision of a state court is “contrary to” clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). An “unreasonable application” occurs when “a state court decision unreasonably applies the law of [the Supreme Court] to the facts of a prisoner's case.” Id. at 409. A federal habeas court may not “issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 410-11.

         The Supreme Court has explained that “[A] federal court's collateral review of a state-court decision must be consistent with the respect due state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, 'and ‘demands that state-court decisions be given the benefit of the doubt.'” Renico v. Lett, 559 U.S. 766, 773 (2010)(quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v. Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[A] state court's determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102 (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Furthermore, pursuant to § 2254(d), “a habeas court must determine what arguments or theories supported or...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id.

         Petitioner filed a petition with this Court, raising eleven claims. The Sixth Circuit observed: “When a party comes to us with nine grounds for reversing the district court, that usually means there are none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).

         III. Discussion

         A. Claim # 1. The jury instruction claim.

         Petitioner contends that the judge erred in giving the jurors an instruction on aiding and abetting when he was not charged as an aider/abettor.

         The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack upon the constitutional validity of a state court conviction is even greater than the showing required in a direct appeal. The question in such a collateral proceeding is whether the ailing instruction so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even “universally condemned, ” and an omission or incomplete instruction is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbee, 431 U.S. 145, 154-155 (1977). Further, any ambiguity, inconsistency or deficiency in a jury instruction does not by itself necessarily constitute a due process violation. Waddington v. Sarausad, 555 U.S. 179, 190 (2009). It is not enough that there might be some “slight possibility” that the jury misapplied the instruction. Id. at 191.

         Under Michigan law, a criminal defendant may be charged as a principal but convicted as an aider and abettor without violating due process. See People v. Turner, 213 Mich.App. 558, 568; 540 N.W.2d 728 (1995); overruled in part on other grounds in People v. Mass, 464 Mich. 615, 628; 628 N.W.2d 540 (2001). Likewise, under federal law, a defendant may be indicted for the commission of a substantive crime as a principal offender and convicted of aiding and abetting its commission, although not named in the indictment as an aider and abettor, without violating federal due process. See Hill v. Perini, 788 F.2d 406, 407 (6th Cir. 1986)(citing Stone v. Wingo, 416 F.2d 857 (6th Cir. 1969)). It is not improper for a state trial court to instruct a jury on the elements of aiding and abetting, even if the habeas petitioner was charged as the principal. Hill, 788 F.2d at 408; see also O'Neal v. Morris, 3 F.3d 143, 145 (6th Cir. 1993), rev'd on other grounds sub nom O'Neal v. McAninch, 513 U.S. 432 (1995).

         The record shows that petitioner and his co-defendant threatened and abused J. G. on numerous occasions. (T. 6/18/2010, pp. 38, 42-45, 48-53). As a result, the trial court judge found that one defendant could have assisted the other defendant in abusing J. G. (T. 6/24/2010, p. 93). J. G. also testified that petitioner ...


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