United States District Court, E.D. Michigan, Southern Division
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
Page Hood Chief Judge, United States District Court
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. §
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.
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.
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).
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).
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).
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).
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).
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).
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.
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
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
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.
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 ...