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Threat v. Harry

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

May 30, 2018

ROBERT THREAT, Petitioner,
v.
SHIRLEE HARRY, Respondent.

          OPINION AND ORDER (1) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS, (2) DENYING THE MOTIONS TO STRIKE THE ANSWER, (3) DENYING A CERTIFICATE OF APPEALABILITY, AND (4) DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         Robert Threat, (“Petitioner”), confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction and sentence for second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a); and being a fourth felony habitual offender, Mich. Comp. Laws § 769.12. For the reasons stated below, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. BACKGROUND

         Petitioner was convicted following a bench trial in the Wayne County Circuit Court.

         LS was the victim.[1] LS was six years old at the time of the incident. LS lived with her mother and petitioner in Detroit. (Tr. 3/22/12, pp. 19, 21, 26). LS testified that petitioner “touched” her on three different days. LS indicated that petitioner pulled her pants down and “rubbed his penis” on her “private” area. LS saw petitioner's penis, noting that it looked “[w]rinkled.” The assault ended when LS's mother entered the room. Petitioner ran to the bathroom and LS pulled up her pants. (Id., pp. 20-26). LS admitted that her mother helped her remember what she needed to testify to in court. LS indicated that her mother “told [her] to say that he did it three times, ” and that her mother instructed her to use the word “penis.” (Id., pp. 42-45).

         A nurse who examined LS testified that the victim informed her that she “was touched on [her] private parts with his wee-wee.” (Id., p. 95.) A video of a forensic interview with LS was admitted into evidence. (Tr. 3/28/12, pp. 3, 5). The prosecution also presented evidence that petitioner tried to discourage LS's mother from coming to court during a jailhouse phone conversation. (Tr. 3/22/12, pp. 71-75).

         Petitioner was found guilty of one count of second-degree criminal sexual conduct and not guilty of two additional counts. In finding petitioner guilty, the judge indicated that he found the victim to be credible. (Tr. 3/28/12, pp. 29-32).

         Petitioner's conviction was affirmed on appeal, although the case was remanded to the trial court for correction of the pre-sentence report. People v. Threat, No. 310331, 2013 WL 3853209 (Mich. Ct. App. July 25, 2013); lv. den. 495 Mich. 915, 840 N.W.2d 355 (2013); reconsideration den. 495 Mich. 997, 845 N.W.2d 97 (2014).

         Petitioner filed a post-conviction motion for relief from judgment pursuant to Mich.Ct.R. 6.500 et seq., which was denied. People v. Threat, No. 11-012857-FH (Wayne Cty.Cir.Ct., Oct. 10, 2014). The Michigan Court of Appeals held petitioner's post-conviction appeal in abeyance with respect to his court costs claim and denied relief with respect to his remaining claims. People v. Threat, No. 325069 (Mich.Ct.App. Feb. 25, 2015). The Michigan Court of Appeals ultimately denied petitioner relief on his remaining claim, after the Michigan Court of Appeals in another case concluded that courts have the authority to impose court costs on defendants in criminal cases. People v. Threat, No. 325069 (Mich.Ct.App. May 21, 2015). The Michigan Supreme Court denied petitioner leave to appeal. People v. Threat, 500 Mich. 945, 890 N.W.2d 665 (2017), reconsideration den., 500 Mich.1004, 895 N.W.2d 172 (2017).

         Petitioner filed a petition for writ of habeas corpus, raising the following claims:

I. Did the trial court abuse its discretion in denying defendant's motion for a new trial?
II. Should the presentence report be corrected and the corrected report sent to the Department of Corrections?
III. Will enforcement of the trial court order to pay court-appointed attorney fees cause manifest hardship to defendant and his family?
IV. Ground four. (Claims raised by petitioner in his post-conviction 6.500 motion):
I. The assessment of court costs as part of [petitioner's] sentence should be vacated, as those costs are not authorized to be imposed in this case by a specific legislative act.
II. Defendant must be resentenced where prior record variable[s] 1, 2, and 5 were scored erroneously, as incorrect scoring violates defendant's due process rights at sentencing under the state and federal constitution, U.S. CONST, AMS V, VI, XIV; CONST 1963, ART 1, §§ 17, 20.
III. Appellate counsel failed to conduct an independent investigation or effectively communicate with [petitioner]; subsequently had no idea of issue [petitioner] wished raised or raise the challenge to the inaccurate PRV scoring, when he challenged other inaccuracies within the PSIR in [petitioner's] appeal of right, or challenging the effective assistance of counsel on his only appeal of right. U.S. CONST, AM VI, CONST 1963, AM VI, CONST 1963 ART 1, § 17.
IV. Trial counsel was constitutionally ineffective for failing to challenge inaccurate scoring of prior record variables, violating [petitioner's] due process rights under U.S. CONST, AMS VI, XIV, CONST 1963, AM VI, CONST 1963 ART 1, §§ 17, 20.

         Petitioner subsequently filed additional pleadings. The Court construed this as a motion to amend the petition for writ of habeas corpus and granted the motion. In his amended petition, petitioner raises the following claims which this Court renumbers for purposes of judicial clarity to be consistent with the enumeration of the original claims:

         V. Following a bench trial by a verdict of guilty on one count out of three count(s) of criminal sexual conduct second degree, where defendant was denied due process of law and the equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution when the trial court infringed upon his due process protections as guaranteed under both state and federal constitutions [U.S. Const, Ams V, VI and XIV; Const 1963, Art. 1 §§ 17, 20] where a reasonable jury could find that the City of Detroit Police Department violated Mr. Threat's constitutional right to be free from arrest without probable cause.

VI. Defendant was denied due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution when the trial denied resentencing for CSC2 without enhancement for fourth offender habitual status because the record failed to establish conclusively that the written notice of intent to enhance was provided within twenty-one days of arraignment as required by MCL § 769.13 violated the rule announced in People v Fountain, 407 Mich. 96; 282 N.W.2d 168 (1979).
VII. Pursuant to Michigan Rules of Evidence Rule 611(A) Mr. Threat was denied due process of the law and equal protection of the laws as guaranteed by the Fourteenth Amendment to the United States Constitution, where the trial court erroneously erred when exercising control over the mode and order of interrogating “excited utterance” when the Fifth Amendment prohibits the government from treating a Defendant's exercise of his right to remain silent at trial as substantive evidence of guilt. U.S.C.A. Const. Amend. 5.
VIII. Defendant denied due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment of the United States Constitution where that the prosecutor's closing statements served to improperly bolster/vouch for the credibility of both Ms. Smith and Ms. Brooks which represented special knowledge of the prosecution regarding MCL § 750.520H, whether Mr. Threat was ever given his Miranda rights and, that there would be monetary benefit if there was not a follow through on the prosecution-any of the evidence that ...

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