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Alfaro v. Campbell

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

June 25, 2018

GABRIEL ANTONIO ALFARO, Petitioner,
v.
SHERMAN CAMPBELL, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          LINDA V. PARKER U.S. DISTRICT JUDGE

         Gabriel 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.

         I. Background

         Petitioner's convictions arise from a July 2012 altercation with his then 14-year-old daughter, and his earlier sexual assault of his daughter.

         At the 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.

         As M.A. 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.)

         A few 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.)

         Once 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.)

         The 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.)

         In 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.)

         M.A. 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 ID 538-542.)

         M.A. 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 544-49.)

         On 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 exaggerated.

         Carol 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. (Id.)

         Ashley 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.)

         Scott 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.)

         Petitioner 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.)

         Finally, 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 was ...


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