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Arnett v. Mackie

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

May 2, 2019

THOMAS MACKIE, Respondent.



         This is 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.

         On 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.

         (Pet., 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.


          I. Factual allegations

         The 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:
Dear [grandmother],
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]

         (Trial 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. (Id.)

         Deputy 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.

         After 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 other causes.

         While 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.)

         The 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 be credible.

         The 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.

         Petitioner, 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.)

         Petitioner's 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.)

         The 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, PageID.359-362.)

         Petitioner 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.

         The 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.

         Petitioner 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.)

         Petitioner 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 forth above.

         II. AEDPA standard

         This 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).

         The 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).

         A 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).

         The 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).

         III. Improper Admission of Hearsay Evidence

         In 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:

         A 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, provided:

(1) the declarant was under the age of ten when the statement was made;
(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 ...

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