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Rosier v. Rivard

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

May 24, 2018

STEVE RIVARD, Respondent.



         This matter has come before the Court on petitioner Samuel Michael Rosier's amended habeas corpus petition under 28 U.S.C. § 2254. The petition challenges Petitioner's state conviction and life sentence for first-degree criminal sexual conduct. See Mich. Comp. Laws § 750.520b(1)(a) (sexual penetration of a person under the age of thirteen). The amended petition raises nine claims regarding the trial court's evidentiary rulings, the prosecutor's remarks, Petitioner's trial and appellate attorneys, the cumulative effect of errors, and Petitioner's sentence.

         The State urges the Court to deny the petition because Petitioner's claims are procedurally defaulted or are not cognizable on habeas review and because the state-court decisions were not objectively unreasonable. The Court agrees that Petitioner's claims do not warrant habeas relief. Accordingly, the petition will be denied.

         I. Background

         A. The Trial

         Petitioner was charged with first-degree criminal sexual conduct in Wayne County, Michigan. He was tried before a jury in Wayne County Circuit Court.

         1. The “Other Acts” Witness

         The first witness was the “other acts” witness (“N.M.”), who was twenty-seven years old at trial. She testified that, in 1993 when she was ten years old, she was living with her grandparents in Battle Creek, Michigan. Petitioner was their neighbor at the time, and she first met him one day after school when none of the adults in her household were home to let her inside. She asked Petitioner, who was standing in front of his house, whether she could use his phone. Petitioner permitted her to use his phone, and she remained in his house while she waited for her relatives to return home. When her relatives arrived home, Petitioner went outside with her and talked with her grandmother. They made plans for Petitioner to teach her karate.

         On a subsequent day, she went back to Petitioner's house with her grandmother's permission to learn karate from Petitioner. As she practiced her karate kicks and how to say a particular word while executing the kicks, Petitioner went to another room and changed into something that looked like an after-shower garment. He returned and suggested a different technique to help her with the karate kicks. He then blindfolded her with a tie, asked her to lie down, and told her to inhale and exhale as he straddled her. There were six counts of inhaling and exhaling. On the third count, Petitioner placed his penis in her mouth, and on the sixth count, he withdrew his penis. Then, he moved to a corner and pulled out a plastic toy. He removed the tie from her face and showed her the block that he supposedly put in her mouth. She did not believe he had put the block in her mouth because she had been able to observe him from underneath the blindfold as she was lying on the floor. She was surprised and upset by what had happened, but she tried to mask her feelings because the incident was so unexpected and she did not understand it at the time. As she left the house, Petitioner said, “This is our little secret.” She later told her grandmother what had happened, and the police were contacted. Petitioner was later convicted for what he had done to her. (10/5/10 Trial Tr., at 23-44.)

         2. The Complainant, her Brother and Mother, and the Motion for a Mistrial

         The complainant was six years old at trial. She testified about a day when she visited a nearby house where Miss Emma and a man lived. As she was picking up the toys, the man put a thing over her eyes and put his “private” in her mouth. She was standing in front of him at the time, and he was wearing a shirt, but no pants. The man subsequently took the thing off her eyes and said, “Good girl.” There were no other children in the house at the time. She then ran outside and told her friend Tranese and her brother D.J. that Sam had put his private in her mouth. The next day she told her mother that Sam had put his private in her mouth. Her mother then got a knife, but her daddy took the knife from her mother, and the police came to the house. Id., at 51-60, 73-77, 85-86. The complainant identified Petitioner at trial as “Sam, ” id., at 60, and she explained that a man's “private” is what he uses to “pee.” Id., at 86.

         The complainant's brother was seven years old at Petitioner's trial. He testified that Sam and Emma and their children lived next door to him on Loretto Street in Detroit. One day in June, he was playing outside with his friend when the complainant came out of the neighbor's house and told him that Sam had put his private in her mouth. He did not believe the complainant at the time, but he later told his mother what the complainant had said. Id., at 91-95.

         The complainant's mother testified on direct examination that she and her family lived directly next door to Emma and Sam, and on June 19, 2010, the complainant told her something that made her cry. She then got a knife with the intention of cutting off Sam's penis, but her fiancé took the knife from her. She later talked to Emma, and someone notified the police. Id., at 110-117.

         On cross-examination, defense counsel asked the complainant's mother what the complainant's exact words to her had been. The mother responded that she and the complainant had been watching the movie “Lovely Bones” when the complainant informed her that she liked the movie. She then explained the movie to the complainant and advised her to tell an adult if anyone ever touched her inappropriately. After she informed the complainant that some people do bad things to children, the complainant said, “Like Sam, ” and when she asked for clarification, the complainant told her that Sam had put his private in her mouth. Id., at 117-19.

         On re-direct examination, the mother testified that the movie was about a young girl who is kidnaped and buried and that an adult watching the movie would understand that the girl had been raped and murdered. The mother also testified that the movie did not depict nudity, sex acts, or anything comparable to what the complainant had described to her. The mother further testified that there was no pornography in her home and that the complainant would not have witnessed an act of oral sex. Id., at 119-22.

         A portion of the movie “Lovely Bones” was subsequently played for the jury, and the mother confirmed that it was the movie she and the complainant had been watching on the day when the complainant disclosed Petitioner's act of oral sex on her. Id., at 134-38. On re-cross examination, defense counsel elicited the mother's testimony that it was immediately after the movie that the complainant disclosed the abuse. Id., at 139-40.

         The remainder of the movie was played for the jury on the next day of trial. At the conclusion of the movie, defense counsel moved for a mistrial on grounds that the movie was emotionally charged, it depicted a serial killer, and it had elements of similar acts. Defense counsel argued that the jury would be unable to give Petitioner a fair trial as a result of seeing the movie. Defense counsel declined the trial court's offer to give a curative jury instruction because he did not think the jurors could completely disregard what they had seen and give Petitioner “a fair shake.” (10/6/10 Trial Tr., at 4-6.)

         The trial court denied the motion for a mistrial. The court pointed out that when there were additional questions about the movie, the court thought that the jury should see the movie for itself and make an independent determination about its possible suggestiveness. The court, nevertheless, offered to work with defense counsel on a curative instruction. Id., at 6-8.

         3. The Defense and Verdict

          Petitioner did not testify, and the only defense witness was Emma Jean Barnes, who testified that she lived with Petitioner and her children on Loretto Street. She stated that the complainant's mother was her neighbor and that her children played with the neighbor's children. She stated that, on many occasions, the children next door wanted to come to her house to play in the yard with her children's toys, and although there were times when she did not want them to come over, that did not cause any friction between her and her neighbor. Barnes also stated that the complainant's mother had never shown any anger toward her, that their children still played together, and that she was comfortable having Petitioner around her children, including her six-year-old daughter. Id., at 11-16.

         Defense counsel urged the jury to keep an open mind. He argued that no investigation of the charge had been done, that there was no physical evidence, and that the prosecution was relying on the words of a five-year-old. Defense counsel also pointed out that the “other acts” incident occurred seventeen years earlier, and he maintained that the related testimony was more of a distraction than anything else. Id., at 31-35.

         On October 6, the jury found Petitioner guilty as charged. Id., at 50. The trial court sentenced Petitioner to mandatory life imprisonment without the possibility of parole under Mich. Comp. Laws § 750.520b(2)(c), because it was Petitioner's second conviction for criminal sexual conduct involving someone under the age of thirteen.

         B. The Appeals and Habeas Petitions

         Petitioner raised his first six habeas claims in the Michigan Court of Appeals on direct review. The Court of Appeals affirmed Petitioner's convictions and sentence in an unpublished, per curiam decision. See People v. Rosier, No. 301493 (Mich. Ct. App. Feb. 16, 2012). Petitioner raised the same six claims and two additional claims in the Michigan Supreme Court. On September 4, 2012, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Rosier, 492 Mich. 866; 819 N.W.2d 863 (2012) (table).[1]

         Petitioner commenced this action on September 18, 2012. After the State filed an answer to the petition, Petitioner moved to hold his petition in abeyance while he returned to state court to pursue additional state remedies. The Court granted Petitioner's motion and closed this case for administrative purposes.

         Petitioner then filed a motion for relief from judgment in the state trial court. He alleged that he was denied due process and a fair trial, that trial counsel was ineffective for failing to request a bill of particulars, and that appellate counsel was ineffective for failing to raise meritorious issues on direct appeal. The trial court denied Petitioner's motion on the merits. The Michigan Court of Appeals, however, denied leave to appeal because Petitioner had failed to establish “good cause” under Michigan Court Rule 6.508(D)(3)(a) for not raising the issues previously. See People v. Rosier, No. 322803 (Mich. Ct. App. Oct. 1, 2014). The Michigan Supreme Court denied leave to appeal for failure to establish entitlement to relief under Rule 6.508(D). See People v. Rosier, 498 Mich. 871; 868 N.W.2d 618 (2015).

         On October 13, 2015, Petitioner filed an amended habeas petition and a motion to re-open this case. The Court granted Petitioner's motion, and the State subsequently filed a supplemental answer.

         II. Standard of Review

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires habeas petitioners who challenge “a matter ‘adjudicated on the merits in State court' to show that the relevant state court ‘decision' (1) ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, ' or (2) ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.'” Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018) (quoting 28 U.S.C. § 2254(d)). “[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. Rather, that application must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court rulings, ' Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court decisions be given the benefit of the doubt, ' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010).

         “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) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the state court's ruling on his or her claim “was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Id., at 103.

         III. Discussion

         A. The Movie

         Petitioner claims the trial court deprived him of his constitutional rights when the court permitted the prosecutor to show the movie “Lovely Bones” to the jury and then denied Petitioner's motion for a mistrial after the jury viewed the movie.[2] Petitioner argues that the movie was highly prejudicial, it was not probative of any fact at issue, and it was irrelevant because he did not advance the theory that the movie influenced the complainant to make false accusations about him.

         The Michigan Court of Appeals agreed with Petitioner that the trial court abused its discretion in admitting the film as evidence. The Court of Appeals stated that the evidence was relevant under Michigan Court Rule 401, but that it was inadmissible under Michigan Court Rule 403, because the danger of unfair prejudice substantially outweighed any probative value of the film. In reaching this conclusion, the Court of Appeals pointed out that, because the film's themes pertained to repeated predatory behavior toward neighborhood children, there was a danger the jurors would convict Petitioner to protect other children from future harm. The Court of Appeals nevertheless concluded that Petitioner was not entitled to relief because the error was not outcome determinative.

         Although Petitioner claims that the trial court's denial of his motion for a mistrial violated his constitutional rights to due process of law, a fair trial, and an impartial jury, his claim is essentially an evidentiary one, and the contention that the movie was inadmissible under the Michigan Rules of Evidence is not a cognizable claim on federal habeas review. Hall v. Vasbinder, 563 F.3d 222, 239 (6th Cir. 2009). “In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991). “If a ruling is especially egregious and ‘results in a denial of fundamental fairness, it may violate due process and thus warrant habeas relief, ' ” but “states have wide latitude with regard to evidentiary matters under the Due Process Clause.” Wilson v. Sheldon, 874 F.3d 470, 475-76 (6th Cir. 2017).

         The movie in question here became relevant when the complainant's mother testified that, after she and the complainant watched the movie, the complainant disclosed what Petitioner had done to her. The movie was shown to the jury to dispel any notion that the movie influenced the young complainant to accuse Petitioner of putting his penis in her mouth. The prosecutor explained the purpose of the movie to the jury in his closing argument, and he even described the movie as “a very insignificant piece of evidence.” (10/6/10 Trial Tr., at 23.)

         The trial court's decision to show the movie was not egregious, and it did not result in the denial of fundamental fairness because the court instructed the jury that the movie had absolutely no relationship to the charge against Petitioner, that it was not a sociological study, and that the jurors should not consider it as such. The court explained that “[t]he sole purpose for which it was allowed was to provide [the jurors] with an independent basis to determine whether the viewing of the film . . . may have had any undue influence on [the complainant] or her mother . . . in making the allegations against [Petitioner].” The court repeated: “That is the only purpose for which you as Jurors may consider the content of the film.” (10/6/10 Trial Tr., at 45.)

         As the Michigan Court of Appeals subsequently recognized:

[t]here is no reason to believe that the jury's verdict was the product of prejudice created by viewing the film. Rather, considering all of the evidence in the case, it is certain that the jury concluded that the victim's testimony was credible and that she was truthfully describing actions that defendant committed.

Rosier, 2012 WL 516068, at *4.

         The Michigan Court of Appeals reasonably concluded from all the evidence in the case that the result of the trial would not have been any different had the film been excluded. Thus, Petitioner's constitutional right to due process was not violated, and habeas relief is not warranted on his claim.

         B. “Other Acts” Evidence

         Petitioner claims next that the trial court erred by allowing the prosecutor to admit evidence of his prior conviction for first-degree criminal sexual conduct involving a girl under the age of thirteen. The evidence was admitted through N.M. who testified that, when she was ten years old, Petitioner covered her eyes, put his penis in her mouth, and subsequently was convicted for what he did to her. Petitioner contends that this testimony was far more prejudicial than probative and so emotional that it served to divert the jury's attention.

         1. Background

         The prosecutor moved to admit the evidence on the first day of trial, claiming that the evidence was admissible under Mich. Comp. Laws § 768.27a[3] and Michigan Rule of Evidence 404(b)[4] because it was relevant and proved that Petitioner's conduct involved a common scheme or plan. (10/4/10 Trial Tr., at 3-7.) Defense counsel admitted that the two incidents of criminal sexual conduct were “eerily similar, ” but he maintained that the probative value of the anticipated testimony was outweighed by the danger of unfair prejudice. Id., at 6. The trial court granted the prosecution's motion to admit the evidence, stating that, in the prior case, Petitioner

covered the eyes of a ten year old girl and placed his penis in her mouth. The girl was a neighbor and [the] act was done in isolation. He was bound over in [the current] case on allegations that he placed a cover of some sort over the eyes of [the] five year old [complainant] and then placed his penis in her mouth. Again we have a neighbor and an act being done in isolation.

Id., at 10.

         The trial court concluded that the similarities between the two cases suggested a common scheme, plan, or system of doing an act, and, therefore, the anticipated testimony from N.M. fell within the type of evidence admissible under Rule 404(b). The court also determined that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Id., at 7-15.

         After N.M. testified on direct examination by the prosecutor, defense counsel objected on the ground that the prosecutor had gone into a lot of detail with N.M. about what occurred before the actual sexual penetration. The prosecutor maintained that the details were necessary to show how Petitioner had “groomed” his victim by getting to know her relatives and gaining their sense of trust. The prosecutor ...

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