United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE HABEAS PETITION,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
HONORABLE NANCY G. EDMUNDS JUDGE
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.
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.
was charged with first-degree criminal sexual conduct in
Wayne County, Michigan. He was tried before a jury in Wayne
County Circuit Court.
The “Other Acts” Witness
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
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.)
The Complainant, her Brother and Mother, and the Motion for a
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.
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.,
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.
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.
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.
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.,
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.)
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.
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.,
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.
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.
The Appeals and Habeas Petitions
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).
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
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).
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
Standard of Review
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,
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.
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. 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.
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.
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).
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.)
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.)
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.
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.
“Other Acts” Evidence
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
prosecutor moved to admit the evidence on the first day of
trial, claiming that the evidence was admissible under Mich.
Comp. Laws § 768.27a and Michigan Rule of Evidence
404(b) 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.
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.
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