United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
V. PARKER U.S. DISTRICT JUDGE
Antonio Alfaro (“Petitioner”) is presently in the
custody of the Michigan Department of Corrections pursuant to
convictions for two counts of first-degree criminal sexual
conduct, Mich. Comp. Laws § 750.520b(1)(b), and one
count each of second-degree criminal sexual conduct, Mich.
Comp. Laws § 750.520c(1)(b), delivery of less than 50
grams of cocaine to a minor, Mich.Comp. Laws §
333.7410(1), and third-degree child abuse, Mich. Comp. Laws
§ 750.136b. He has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, raising two claims
for relief: (1) the admission of evidence regarding a prior
investigation of Petitioner by Children's Protective
Services violated his rights to due process and a fair trial;
and, (2) the exclusion of a videotaped interview of the
victim denied him his right to present a defense. The Court
finds that neither of Petitioner's claims satisfy the
strict standards for habeas corpus relief. Therefore, the
Court is denying the petition.
convictions arise from a July 2012 altercation with his then
14-year-old daughter, and his earlier sexual assault of his
time of trial, Petitioner's daughter, M.A., was fifteen
years old. M.A. testified that she lived with her father in
Lincoln Park, Michigan, during the relevant time period. On
July 26, 2012, when she was fourteen years old, she drove her
father to a CVS pharmacy. (5/21/13 Trial Tr. at 135-37; ECF
No. 5-8, Pg. ID 477-79.) She testified that her father had
been drinking that night. (Id. at 137, Pg ID 479.)
When they arrived at CVS, Petitioner was not happy with
M.A.'s chosen parking spot, so he
“backhanded” her and “smacked” her.
(Id. at 138, Pg ID 480.) M.A. testified that after
Petitioner struck her, she exited the car and walked toward
the pharmacy's front doors. (Id. at 139, Pg ID
481.) Petitioner drove the car closer to the pharmacy's
front doors and ordered M.A. to get into the car. When she
did not, he got out of the vehicle, grabbed her by the hair
and pulled her into the passenger seat. (Id. at 140,
Pg ID 482.) Petitioner then drove home.
was walking toward the house, Petitioner smacked her again
and pushed her into the side of the house. (Id. at
132, Pg ID 484.) M.A. testified that she went upstairs to her
bedroom while her father remained on the first floor.
(Id. at 133, Pg ID 485.) She texted her
boyfriend Kyle, telling him that she anticipated things might
get out of hand that night and he might need to come get her.
(Id. at 136, Pg ID 488.) M.A. erased the message
immediately after sending it because her father had forbidden
her from having contact with Kyle. Petitioner then came
upstairs and took M.A.'s phone away from her.
(Id. at 139, Pg ID 491.)
minutes later, Petitioner returned to M.A.'s bedroom
asking why Kyle was texting her and why she needed Kyle to
come get her. (Id. at 138-39, Pg ID 490-91.) M.A.
testified that when she started to cry, her father jumped on
top of her bed and started punching her with a closed fist.
(Id.at 139, Pg ID 491.) M.A. blocked her face with
her pillow. Petitioner stopped punching her when she stopped
crying. He ordered her to go downstairs, but she refused.
Petitioner dragged her downstairs by her hair, threw her on a
couch, and resumed yelling at her. (Id. at 153-54,
Pg ID 495-96.) Eventually, M.A. ran to the home of her
friend, Carol Leigh Breton, approximately one mile from her
own. (Id. at 157-58, Pg ID 499-500.)
she was safely at her friend's house, M.A. contacted her
cousin and her aunt, Angela, who picked her up at
approximately 2:30 a.m. (Id. at 165, Pg ID 507.) As
she waited for her family members to pick her up, M.A. showed
Carol Leigh her injuries, including a cut to her hand and
bumps on her head from where her father struck her.
(Id. at 167-68, Pg ID 509-10.) She also told Carol
Leigh that her father had sexually assaulted her.
(Id. at 168, Pg ID 510.) M.A. testified that she
previously told one other person, her friend Ashley Hanson,
that her father had intercourse with her. (Id. at
169, Pg ID 511.)
next day, M.A.'s aunt and cousin took her to the Lincoln
Park Police Department, where M.A. gave a report to a police
officer. Someone from Child Protective Services (CPS) also
interviewed her. (Id. at 175, Pg ID 517.) M.A.
testified that she did not initially tell the police or CPS
that she had been sexually assaulted by her father because
she was ashamed and embarrassed and did not want anyone to
know what had happened to her. (Id. at 183, Pg ID
525.) M.A. did eventually report the sexual assault through a
CPS hotline phone number. (Id. at 185, Pg ID 527.)
August 2012, M.A. was interviewed at Kids Talk regarding her
allegations against her father. (Id.) While she told
the interviewer about some of the things her father had done
to her, she did not tell the interviewer there had been
penetration because she was ashamed and embarrassed.
(Id. at 187, Pg ID 529.) The first time she
specifically told someone in authority that there had been
penetration was at her father's preliminary examination
on October 30, 2012. (Id. at 188, Pg ID 530.)
testified that one night, when she was fourteen years old,
she fell asleep on a couch in the living room of the home she
shared with her father. (Id. at 193, Pg ID 535.) She
awoke to find her father massaging her back. (Id.)
This, by itself was not unusual as she played softball and he
would occasionally massage her back and shoulders to relieve
muscle pain. (Id. at 193-94, Pg ID 535-36.)
Eventually, he began massaging her buttocks, which was
unusual. (Id. at 194, Pg ID 536.) He pulled her
pants down and licked her buttocks and then her vagina.
(Id. at 194-95, Pg ID 536-37.) Ultimately, he
penetrated her vagina with his penis, while calling her by
her deceased mother's name. (Id. at 195-200, Pg
testified that her father drank heavily and that he routinely
allowed her to drink alcohol. (Id. at 189, Pg ID
531.) M.A. was aware that her father also used cocaine.
(Id. at 201, Pg ID 543.) Sometime after the sexual
assault, she asked him if she could try some. (Id.)
He took her with him to purchase cocaine in downtown Detroit
and allowed her to try it. (Id. at 202-07, Pg ID
cross-examination, defense counsel focused on inconsistencies
between M.A.'s earlier accounts of the physical assault
at CVS and her trial testimony, including that M.A. had not
previously told anyone that her father was intoxicated that
evening. Defense counsel also called into question the
veracity of M.A.'s accounts of her injuries, questioning
whether M.A.'s reports of bruising were false or
Leigh testified that she and M.A. were best friends. (5/22/13
Trial Tr. at 65-66, ECF No. 5-9, Pg. ID 619-20.) She recalled
that late in the evening on July 26, 2012, she saw M.A.
outside her home in a disheveled state. M.A. had scratches
all over her legs, bumps on her head, and a bloody hand.
(Id. at 72, Pg ID 625.) That evening, M.A. told
Carol Leigh that Petitioner had raped her one or two months
earlier. (Id. at 78, Pg ID 631.) She also told Carol
Leigh that she had previously used cocaine with Petitioner.
Hanson testified that M.A. was one of her best friends.
(Id. at 94, Pg ID 647.) Ashley testified that, in
May or June 2012, M.A. told Ashley that her father had raped
her and she was concerned she might be pregnant.
(Id. at 98, Pg ID 651.) M.A. was visibly upset when
she shared this information with Ashley. (Id. at 99,
Pg ID 652.)
Lavis, a police officer for the Lincoln Park Police
Department, testified that he was assigned to investigate the
allegations against Petitioner. (Id. at 104, Pg ID
657.) He arranged for M.A. to attend a Kids Talk interview,
which he observed through a closed circuit television.
(Id. at 108-09, Pg ID 661-62.) According to Officer
Lavis' recollection of the Kids Talk interview, M.A.
described cunnilingus being performed by her father.
(Id. at 110, Pg ID 663.) Officer Lavis also recalled
that while M.A. did not state that her father's penis
penetrated her vagina, her description of what transpired
satisfied the legal definition of penetration. (Id.
at 110-11, Pg ID 663-64.) He testified that he first heard
M.A. state that there had been vaginal penetration during the
preliminary examination. (Id. at 111, Pg ID 664.)
presented three witnesses in his defense: (1) his brother,
Frank Alfaro; (2) his sister, Tomasita Alfaro-Koehler; and
(3) himself. Frank Alfaro testified that he twice saw M.A.
sneak alcohol. (Id. at 132-137, Pg ID 685-690.) He
never saw his brother hit M.A. (Id. at 148, Pg ID
701.) Tomasita Alfaro-Koehler testified that M.A. lived with
her from November 2009 through May 5, 2010, when M.A. was 12
years old. (Id. at 153-156, Pg ID 707-10.)
Alfaro-Koehler admitted that in November 2009, she told a CPS
worker that she had concerns about Petitioner's ability
to parent M.A. based upon his substance abuse. (Id.
at 165, Pg ID 719.) She clarified that by “substance
abuse” she meant alcohol. (Id.)
Petitioner testified in his own defense. He testified that
the argument at CVS was precipitated by M.A.'s erratic
driving and his suspicions that she was under the influence
of drugs or alcohol. (5/23/13 Trial Tr. at 14-18, ECF No.
5-10, Pg. ID 738-742.) He denied grabbing her by the hair,
testifying that he grabbed her by the arm and walked her back
toward the car to ensure that she would not try to run away.
(Id. at 9-10, Pg ID 741-42.) Petitioner told M.A. he