United States District Court, W.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
KENT UNITED STATES MAGISTRATE JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Petitioner Jamie Christopher Arnett is
incarcerated with the Michigan Department of Corrections at
the Oaks Correctional Facility (ECF) in Manistee, Michigan.
Following a three-day jury trial in the Tuscola County
Circuit Court, Petitioner was convicted of twenty counts of
first-degree criminal sexual conduct (CSC-I), Mich. Comp.
Laws § 750.520b. On January 2, 2014, the court sentenced
Petitioner to concurrent prison terms of 25 years to 37
years, 6 months, on each count.
February 14, 2018, Petitioner filed his habeas corpus
petition which raises four grounds for relief, as follows:
I. Petitioner was denied effective assistance of counsel and
a fair trial where his attorney failed to object to the
forensic interviewer and others vouching for the credibility
of the child complainant.
II. The trial court erred in allowing into evidence the
recorded interview of the child complainant with the forensic
interviewer and Petitioner was deprived of effective
assistance of counsel because his attorney did not object.
III. Petitioner received ineffective assistance of counsel
because his attorney did not completely advise him of his
chances of an acquittal.
IV. Petitioner was deprived of his constitutional right to
counsel because he received ineffective assistance of counsel
in the failure to his trial attorney to consult with or call
an expert pediatrics witness.
ECF No. 1-1, PageID.18, 19.) Respondent has filed an answer
to the petition (ECF No. 4) stating that the grounds should
be denied because they are unexhausted or lack merit. Upon
review and applying the standards of the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. 104-132, 110
Stat. 1214 (AEDPA), I find that the grounds are meritless.
Accordingly, I recommend that the petition be denied.
victim of Petitioner's criminal sexual conduct was his
step-daughter. She was nine-years-old when she testified at
Petitioner's trial. (Trial Tr. I, ECF No. 15-5,
PageID.244.) She testified that, while her mother was away at
work Petitioner, would put his private part in her crotch.
(Id., PageID.247-248, 252.) She testified his
private part would go past the two pieces of skin in her
crotch and that it hurt. (Id., PageID.248, 252.) She
said it happened twenty times. (Id.) She testified
that he also put his private part in her butt. (Id.)
On July 8, 2013, the victim disclosed the abuse to her
grandmother by way of a handwritten note which read:
I have to tell you something that I should of told you a long
time ago and here it is. My dad kept rape me. I don't
know why my dad kept rape me. He tells me to go on top of him
and he said to keep it a secret but I have to tell. You are
the only one to tell.
Love, [your granddaughter]
Tr. I, ECF No. 15-5, PageID.231-232; Pet'r's Appeal
Br., ECF No. 15-9, PageID.383.) The grandmother told her
husband as well as the victim's father and step-mother.
(Trial Tr. I, ECF No. 15-5, PageID.232.) They immediately
called the police and Child Protective Services.
Michael Scarborough arrived at the grandmother's home
within minutes. (Id., PageID.242.) He secured the
note and contacted the prosecutor to set up a forensic
interview at the Tuscola County Child Advocacy Center (CAC).
(Id., PageID.242-243.) Amber Spencer, executive
director of the CAC, conducted a forensic interview of the
victim just a couple of hours later. (Trial Tr. II, ECF No.
15-6, PageID.265-268.) The interview was recorded on DVD. The
DVD was played for the jury.
the interview, the victim was examined by Sheri Clair, a
certified sexual assault nurse examiner. (Id.,
PageID.273-274.) Nurse Clair found two small lacerations on
the victim's labia minora. (Id.,
PageID.274-276.) Nurse Clair indicated that the lacerations
were consistent with the reported abuse. (Id.) She
also testified that the lacerations located on the labia
minora were consistent with penetration of the labia.
(Id.) Nonetheless, Nurse Clair could not rule out
the victim was at the CAC, Petitioner was at the Tuscola
County Sheriff's Office for an interview with Detective
Robert Baxter. (Id., PageID.280-281.) The interview
was recorded. (Id.) A DVD of the interview was
played for the jury. After the interview, Detective Baxter
was notified of Nurse Clair's examination results.
(Id., PageID.282.) Petitioner was then arrested.
(Id.) The next morning, Detective Scott Jones
interviewed Petitioner again. (Id., PageID.287.)
Detective Jones testified regarding the content of that
interview and his investigation of Petitioner's home
thereafter. (Id., PageID.287-289.)
victim's grandmother and the victim's mother provided
testimony during the trial regarding whether or not they
believed the victim. The forensic interviewer was also asked
whether the victim's interview responses appeared to be
truthful. All three testified that they found the victim to
jury deliberated for a few hours before finding Petitioner
guilty of all twenty counts of CSC-I, as charged. During
their deliberations, the jurors were permitted to view the
DVD of the victim's CAC interview as well as the DVD of
Petitioner's initial police interview.
with the assistance of counsel, raised the same four issues
on direct appeal to the Michigan Court of Appeals that he
raises in his petition. Petitioner sought a remand to the
trial court to develop a record regarding Petitioner's
claim that his trial counsel advised Petitioner to reject a
plea offer “because the prosecutor did not have a
case.” (Mot. to Remand, ECF No. 15-9, PageID.407.)
Petitioner also hoped to develop a record at the trial court
to support his claim that trial counsel was ineffective for
failing to call an expert in pediatrics. (Id.,
PageID.407-409.) The court of appeals granted Petitioner a
remand with respect to trial counsel's advice regarding
the plea offer, but denied the motion to remand in all other
respects. (Mich. Ct. App. Ord., ECF No. 15-9, PageID.451.)
appellate counsel filed a motion relating to the remand in
the trial court on October 3, 2014. October 3 was one day too
late according to the trial court; therefore, the trial court
denied the motion as untimely. (Tuscola Cty. Cir. Ct. Order,
ECF No. 15-9, PageID.486.)
Michigan Court of Appeals rejected Petitioner's
challenges to his convictions by unpublished opinion issued
April 28, 2015. (Mich. Ct. App. Op., ECF No. 15-9,
then filed a pro per application for leave to appeal
in the Michigan Supreme Court. He raised the four issues from
his court of appeals brief and three new issues:
V. [Petitioner's counsel had a] conflict of interest due
to . . . counsel having applied for a job [in the
prosecutor's office] shortly before trial began.
VI. Prosecution was leading . . . the victim . . . and
fabricating lies about [Petitioner] to determine the
jury's view of [Petitioner].
VII. The victim has stated to several witnesses that she lied
about the statements made in court against the defendant.
(Pet'r's Appl. for Leave to Appeal, ECF No. 15-10,
PageID.505, 507, 509.) By order entered December 23, 2015,
the supreme court denied leave as to all issues except
Petitioner's Issue I. (Mich. Order, ECF No. 15-10,
PageID.489.) With respect to Issue I, regarding
witness-vouching and the associated ineffective assistance of
counsel claim, in lieu of granting leave to appeal, the court
vacated the court of appeals' decision and remanded the
case to the court of appeals for further consideration in
light of People v. Douglas, 496 Mich. 557 (2014).
(Id.) In People v. Douglas, the Michigan
Supreme Court considered, and resolved in favor of the
defendant, the same issues that Petitioner raises as habeas
issues I and II.
Michigan Court of Appeals issued an opinion on remand on May
10, 2016. (Mich. Ct. App. Op. on Remand, ECF No. 15-9,
PageID.353-357.) Taking Douglas into account, the
court of appeals renewed its affirmance of the trial
court's judgment of conviction.
again turned to the Michigan Supreme Court for relief.
Petitioner filed a new application for leave to appeal
raising Issue I, plus a new issue challenging his sentence
because it was based on “judge-found” facts.
(Pet'r's Appl. for Leave to Appeal after Remand, ECF
No. 15-11, PageID.586-594.) The Michigan Supreme Court denied
leave by order entered November 30, 2016. (Mich. Order after
Remand, ECF No. 15-11, PageID.585.)
then filed the instant petition raising the four issues set
forth above. Petitioner sought a stay so that he might return
to the trial court and file a motion for relief from
judgment. Petitioner has since withdrawn that request and
asked this Court to proceed with just the four issues set
action is governed by the Antiterrorism and Effective Death
Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214 (AEDPA).
The AEDPA “prevents federal habeas
‘retrials'” and ensures that state court
convictions are given effect to the extent possible under the
law. Bell v. Cone, 535 U.S. 685, 693-94 (2002). An
application for writ of habeas corpus on behalf of a person
who is incarcerated pursuant to a state conviction cannot be
granted with respect to any claim that was adjudicated on the
merits in state court unless the adjudication: “(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 upon an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d). This standard is “intentionally
difficult to meet.” Woods v. Donald, 575 U.S.
__, 135 S.Ct. 1372, 1376 (2015) (internal quotation omitted).
AEDPA limits the source of law to cases decided by the United
States Supreme Court. 28 U.S.C. § 2254(d). This Court
may consider only the holdings, and not the dicta, of the
Supreme Court. Williams v. Taylor, 529 U.S. 362, 412
(2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th
Cir. 2001). In determining whether federal law is clearly
established, the Court may not consider the decisions of
lower federal courts. Williams, 529 U.S. at 381-82;
Miller v. Straub, 299 F.3d 570, 578-79 (6th Cir.
2002). Moreover, “clearly established Federal
law” does not include decisions of the Supreme Court
announced after the last adjudication of the merits in state
court. Greene v. Fisher, 565 U.S. 34, 37-38 (2011).
Thus, the inquiry is limited to an examination of the legal
landscape as it would have appeared to the Michigan state
courts in light of Supreme Court precedent at the time of the
state-court adjudication on the merits. Miller v.
Stovall, 742 F.3d 642, 644 (6th Cir. 2014) (citing
Greene, 565 U.S. at 38).
federal habeas court may issue the writ under the
“contrary to” clause if the state court applies a
rule different from the governing law set forth in the
Supreme Court's cases, or if it decides a case
differently than the Supreme Court has done on a set of
materially indistinguishable facts. Bell, 535 U.S.
at 694 (citing Williams, 529 U.S. at 405-06).
“To satisfy this high bar, a habeas petitioner is
required to ‘show that the state court's ruling on
the claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.'” Woods, 135
S.Ct. at 1376 (quoting Harrington v. Richter, 562
U.S. 86, 103 (2011)). In other words, “[w]here the
precise contours of the right remain unclear, state courts
enjoy broad discretion in their adjudication of a
prisoner's claims.” White v. Woodall, 572
U.S. 415, 424 (2014) (internal quotations omitted).
AEDPA requires heightened respect for state factual findings.
Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir.
1998). A determination of a factual issue made by a state
court is presumed to be correct, and the petitioner has the
burden of rebutting the presumption by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1); Lancaster v.
Adams, 324 F.3d 423, 429 (6th Cir. 2003);
Bailey, 271 F.3d at 656. This presumption of
correctness is accorded to findings of state appellate
courts, as well as the trial court. See Sumner v.
Mata, 449 U.S. 539, 546 (1981); Smith v. Jago,
888 F.2d 399, 407 n.4 (6th Cir. 1989).
Improper Admission of Hearsay Evidence
Petitioner's first habeas issue he contends that the
trial court should not have admitted the CAC interview of the
victim. The prosecutor offered the interview, which would
otherwise be excluded as hearsay under Michigan Rule of
Evidence 802, into evidence under Michigan Rule of Evidence
803A, which states:
statement describing an incident that included a sexual act
performed with or on the declarant by the defendant or an
accomplice is admissible to the extent that it corroborates
testimony given by the declarant during the same proceeding,
(1) the declarant was under the age of ten when the statement
(2) the statement is shown to have been spontaneous and
without indication of manufacture;
(3) either the declarant made the statement immediately after
the incident or any delay is excusable as having been caused
by fear or other equally effective circumstance; and
(4) the statement is introduced through the testimony of
someone other than the declarant.
If the declarant made more than one corroborative statement
about the incident, only the first is ...