United States District Court, E.D. Michigan, Southern Division
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
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).
reasons stated below, the petition for a writ of habeas
corpus is DENIED WITH PREJUDICE.
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
People v. Bennett, No. 299829, 2012 WL 6097317, at
*4 (Mich. Ct. App. Dec. 6, 2012).
conviction was affirmed on direct appeal. Id.;
lv. den. 494 Mich. 870, 832 N.W.2d 212 (Mich. 2013).
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
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
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.
Standard of Review
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;
(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.
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.
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.
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).
Claim # 1. The jury instruction claim.
contends that the judge erred in giving the jurors an
instruction on aiding and abetting when he was not charged as
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.
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).
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 ...