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Bullard v. Jackson

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

May 31, 2018

KEITH WALTER BULLARD, Petitioner,
v.
SHANE JACKSON, [1] Respondent.

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

          Denise Page Hood Chief Judge, United States District Court

         Keith Walter Bullard, (“Petitioner”), confined at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction and sentence for criminal sexual conduct, second-degree (person under 13), M.C.L.A. § 750.520c(1)(a).

         Respondent filed an answer to the petition. As part of the answer, respondent requested this Court to dismiss the petition on the ground that petitioner's sixth claim, pertaining to the trial judge's utilization of factors to increase his minimum sentence that were not submitted to the jury, is unexhausted. In lieu of dismissing the petition for a writ of habeas corpus, the Court held the petition in abeyance to allow petitioner to return to the trial court to exhaust his sixth claim. Rather than returning to the trial court, petitioner requested that he be allowed to amend his petition to delete his sixth unexhausted claim and to re-open the petition to the Court's active docket. (Dkt. ## 14-16). This Court reopened his habeas petition and deleted the sixth claim. For the reasons that follow, the petition for a writ of habeas corpus is DENIED.

         I. Background

         Petitioner was originally charged with first-degree criminal sexual conduct (person under the age of 13) and second-degree criminal sexual conduct (person under the age of 13). Following a jury trial, the first count was dismissed by the court and the jury convicted petitioner of second-degree criminal sexual conduct.

         The victim was four years old at the time of the offense and will be referred to as “B.” Her mother Kayla Scherret, age 23, and petitioner Keith Bullard, age 42, were in a dating relationship in which they lived together from April 2009 through November, 2009. (Tr. 6/7/2011.pp. 282-284, 291, 327). Petitioner did not work and watched “B” while her mother worked milking cows. (Id. at 316-317). Kayla's mother is Jane Scherret and her aunts are Janice Dohring and Joanne Kern. (Id. at 286-287). Jane is the mother of Kevin and Kayla. (Id. at 315). Kayla did laundry for herself and “B” at her mother's house. (Id. at 304-306, 311). Dohring's teen-age nephew Kevin (Jane's son), and daughter Elizabeth, occasionally babysits “B.” (Id. at 314-315, 356).

         Kayla had to work Thanksgiving week and planned to have “B” picked up on Wednesday to stay at “B's” grandmother's house through the weekend. (Id. at 292-293). “B” always sleeps in her bedroom, in her own bed. (Id. at 285, 294). On Tuesday, November 24, 2009, Kayla had to be at work. “B” was adamant that Kayla not leave for work, but Kalya left “B” with petitioner. Janice Dohring sent a text message to Kayla's phone, which is left in the apartment when Kayla went to work, to tell her that she was coming to pick up “B.” Aunt Janice was at the apartment to pick up “B” about 45 to 60 minutes later. When she arrived she noticed that “B” was “very nervous, she was very scared, frightened.” Janice testified that she noticed that things in the home were “out of order.” “B's” bedding was on the couch, that “B” was not packed or ready to go, and that “B” was “very scared to get near Keith.” Petitioner placed dirty clothes from the bathroom into plastic bags while Janice got “B” ready to go, without changing “B's” clothes. Janice placed the plastic bags of dirty clothes in the trunk of her car and went to her sister's Jane's house so that Jane could see “B.” (Id. at 296, 319-324). Janice left the plastic bag of dirty laundry in Jane's utility room. (Id. at 324). Jane washed the clothing later that day and threw out the plastic bag. (Tr. 6/8/2011, pp. 415-416). When Kayla returned home, petitioner told her that her aunt had picked up “B” earlier that day instead of Wednesday, as Kayla had planned. (Tr. 6/7/2011.p. 298).

         “B” spent the night with Janice and her daughter, Elizabeth Dohring. Janice testified that “B” remained afraid. (Id. at 325-327). Her clothes were dirty and she smelled. Her underwear appeared dirty and “pee stained.” (Id. at 345-347). She picked up the clothes that “B” had been wearing since leaving the apartment and placed them in her hamper, where they remained until the Friday after Thanksgiving Day. (Id. at 335-336). “B” slept with Janice, but had difficulty falling asleep, was frightened, clingy, and incontinent on and off on Wednesday and throughout Thanksgiving Day and into Friday. On Friday morning, Janice went to work between 7:00 and 8:00 a.m. as a nursing assistant. (Id. at 329-334). “B” was asleep when Janice left and her daughter Elizabeth (age 13) and nephew Kevin (age 16) remained home with “B.” (Id. at 334, Tr. 6/8/2011, p. 372). Kevin watched “Finding Nemo” with “B” around noon while trying to get “B” down for a nap. “B” was “whiny, crying and scared” and would not let Kevin “leave her side at all.” (Tr. 6/8/2011, pp. 365-366). While trying to get her to calm down and nap, “B” told Kevin, “Uncle Kevin, do you know what Keith did to me...Keith stuck his pee-pee in me.” (Id. at 368). Kevin called his mom, Jane Scherret, who took “B” to the hospital. (Id. at pp. 369, 407, 408).

         After leaving the hospital, Jane Scherret stopped by her sister Janice's house for “B's” toys and a basket of dirty laundry. Janice does not have a washing machine. The clothes that “B” had on when she left on Tuesday were among the items to launder. Jane called and informed the hospital that she had the clothes. She was advised to place them in a brown paper bag and take them to the hospital. (Id. at 410-414, 498).

         Nurse Pamela Lueke performed an initial assessment when “B” arrived at the hospital for evaluation on Friday. She testified that “B” did not say much at first and when asked why she was there, she “did say she was there because he hurted (sic) my heart.” Lueke further testified that “B” said “he put his pee-pee in there, ” while pointing to her vagina between her legs “and that he stopped doing it when her aunt was coming to pick her up.” (Id. at pp. 470-474, 490). A vaginal and rectal smear was obtained from “B.” (Id. at pp. 480-481).

         The Michigan State Police crime lab in Bridgeport conducted DNA tests on the underpants and procured a DNA sample from petitioner. (Id. at 525, 539). Sperm cells were found within the sample extracted from the underwear. (Id. at 545, 549-550). The DNA profile from the skin cell sample matched “B's” known DNA profile and the DNA profile from the sperm cells sample matched petitioner's. (Id. at 582-583).

         The jury found petitioner not guilty of first-degree criminal sexual conduct, penile-vaginal penetration, but convicted petitioner of second-degree criminal sexual conduct. Petitioner was sentenced as a fourth-felony habitual offender, Mich. Comp. Laws § 769.12, and is currently serving a sentence of 14 - 30 years.

         Petitioner filed a delayed application for leave to appeal. Petitioner's conviction was affirmed on appeal. People v. Bullard, No. 310854, (Mich. Ct. App. April 26, 2013), lv. den 495 Mich. 913; 840 N.W.2d 357 (2013).

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

I. In prohibiting admission of defense expert testimony, the trial court violated the constitutional right to present a defense.
II. The trial court's improper admission of hearsay evidence violated due process rights.
III. Violation of Sixth Amendment right to confront witness.
IV. Violation of right to counsel.
V. Denied right to due process to a fair trial by denying motion to appoint an expert in forensic interviewing.

         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 ...


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