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Head v. Smith

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

May 13, 2019

CHARLES HUDSON HEAD, III, Petitioner,
v.
WILLIE SMITH, Respondent.

          Honorable Paul L. Maloney

          REPORT AND RECOMMENDATION

          PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Petitioner Charles Hudson Head, III is incarcerated with the Michigan Department of Corrections at the Ionia Correctional Facility (ICF) in Ionia, Michigan. Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of third-degree criminal sexual conduct (CSC-III), Mich. Comp. Laws § 750.520d; assault with intent to do great bodily harm (AGBH), Mich. Comp. Laws § 750.84; and armed robbery, Mich. Comp. Laws § 750.529. The jury acquitted Petitioner of two counts of first-degree criminal sexual conduct (CSC-I) and one count of kidnapping. On July 3, 2014, the court sentenced Petitioner as a habitual offender-fourth offense, Mich. Comp. Laws § 769.12, to concurrent prison terms of 50 to 75 years for each offense. The concurrent sentences, however, were to be served consecutively to sentences for offenses for which Petitioner was on parole at the time he committed the present offenses.

         On November 28, 2017, Petitioner timely filed his habeas corpus petition. Petitioner left blank the section of the habeas petition form that required him to identify his habeas issues. Instead, he attached the briefs he filed in the Michigan Court of Appeals and the Michigan Supreme Court. In the Michigan Court of Appeals, through his brief filed with the assistance of counsel and his Standard 4 brief, [1] he raised seven issues:

I. The evidence was not legally sufficient to prove beyond a reasonable doubt that Mr. Head aided and abetted in the third-degree criminal sexual conduct committed by another individual rendering that conviction constitutionally defective and necessitating reversal under the due process guarantees of the 14th Amendment and Const. 1963, Art. 1, § 17.
II. [Petitioner's] Fourth Amendment rights [were] violated where the [search] warrant was premised on false testimony.
III. [Petitioner's] constitutional rights to the effective assistance of counsel [were] violated.
IV. [Petitioner's] constitutional right to due process was violated where the evidence was insufficient to prove beyond a reasonable doubt that [Petitioner] committed armed robbery.
V. The trial court abused its discretion by erroneously scoring offense variables 4, 7, and 10 contrary to the evidence recorded.
VI. [Petitioner's] constitutional right to due process was violated where the evidence was insufficient to prove beyond a reasonable doubt that [Petitioner] committed assault with intent to do great bodily harm less than murder.
VII. [Petitioner's] constitutional right to due process was violated where the eyewitness identification testimony was improperly suggestive and had no independ[e]nt basis.

(Pet'r's Br. on Appeal, ECF No. 1-1, PageID.18 (Issue I); Pet'r's Standard 4 Br. on Appeal, ECF No. 1-1, PageID.45-46 (Issues II-VII).) In the Michigan Supreme Court, Petitioner raised the same seven issues plus one new one.

         Petitioner failed to exhaust his state court remedies with respect to the new issue he raised in the Michigan Supreme Court. Petitioner also requested a stay to permit him to raise additional issues by way of a motion for relief from judgment in state court. (ECF No. 3.) As set forth fully in the Court's January 12, 2018, opinion and order (ECF Nos. 6, 7), the Court provided Petitioner 28 days to demonstrate that he was entitled to a stay. The Court warned Petitioner that, should he fail to timely comply, the Court would review only Petitioner's exhausted claims. Petitioner failed to timely comply; accordingly, the Court's review is limited to habeas issues I-VII. (Order, ECF No. 11.)

         Respondent has filed an answer to the petition (ECF No. 15) stating that the grounds should be denied because they are procedurally defaulted, non-cognizable, and/or meritless. 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 either non-cognizable or meritless. Accordingly, I recommend that the petition be denied.

         Discussion

         I. Factual allegations

         At Petitioner's trial, the 28-year-old female victim testified that, on the morning of June 25, 2013, she responded to an internet chat-room inquiry seeking marijuana. (Trial Tr. II, ECF No. 16-9, PageID.631, 636-642.) She drove to the address provided: 8487 Penrod in Detroit, Michigan. (Id., PageID.642-643.) When she arrived at the home, Petitioner was standing at the front door. (Id., PageID.643, 646-648.) She locked her car and went into the house to see the money before she brought in the marijuana. (Id., PageID.645.)

         Petitioner led her upstairs into a bedroom, ostensibly to show the victim the money. (Id., PageID.648-650.) Instead, he held her in the bedroom, compelled her to undress, and then, without consent, penetrated her mouth and her vagina with his penis. (Id., PageID.650-657.)

         When Petitioner was finished, he directed the victim to get dressed and he followed her down the stairs. (Id., PageID.657-659.) Partway down the stairway, the victim was stunned by a blow to her head. (Id., PageID.659-660.) She looked back and saw Petitioner wielding an axe with a blue towel wrapped around the handle. (Id., PageID.661-662.) He swung again, hitting her on the left arm. (Id.)

         Petitioner instructed the victim to empty her pockets and, again, remove her clothing. (Id., PageID.662-664.) Petitioner sent his roommate, who had been sleeping on a couch in the living room, out to the victim's vehicle to retrieve the marijuana and other items of value. (Id., PageID.665-666.) Upon his return, Petitioner directed the victim to kneel on the stairs and put her mouth on one of the treads. (Id., PageID.668-669.) He directed his roommate to get a condom from upstairs. (Id.) Petitioner then stood nearby as his roommate, without consent, penetrated the victim's vagina with his penis. (Id., PageID.670-671.)

         Petitioner then told the victim to go an get them more drugs. (Id., PageID.672-677.) He threatened to kill her and her loved ones if she did not return within an hour. (Id.) He gave her a t-shirt to wear, keeping her clothes. (Id.)

         The victim went to a nearby gas station and was able to convince a patron to call the police. (Id., PageID.677-679.) She told police she had been carjacked, brought to the house, and was then raped, robbed, and assaulted. (Id., PageID.679-681.) At trial, the victim explained her carjacking lie as an attempt to cover the true purpose of her visit to the home. (Id., PageID.682)

         Based on the victim's story, the police obtained a search warrant. (Id., PageID.770; Trial Tr. III, ECF No. 16-10, PageID.833-835.) Upon execution of the warrant, between Petitioner's home and a nearby dumpster, the police found the axe, the victim's clothing, the victim's wallet, and the victim's GPS system. (Trial Tr. II, ECF No. 16-9, PageID.771-773; Trial Tr. III, ECF No. 16-10, PageID.794-796, 838.) Petitioner and his roommate had fled. (Trial Tr. II, ECF No. 16-9, PageID.770-771; Trial Tr. III, ECF No. 16-10, PageID.790-791.)

         At the time of the offense, Petitioner was on parole and on tether. After the victim left, Petitioner cut off the tether and absconded. (Trial Tr. III, ECF No. 16-10, PageID.931-932.) He was finally arrested more than six months later. (Id., PageID.904-905.) Police never located Petitioner's roommate or any other person who may have been in the house at the time of the incident.

         Petitioner did not testify at trial. Upon his arrest, however, he participated in an interview. (Id., PageID.906-924.) He provided written and signed responses to written questions from an officer. (Id.) The written questions and answers were admitted as evidence.

         Petitioner's version of the events varied from the victim's in five key respects. First, he claims he had two houseguests, not one. (Id., PageID.917.) Second, one of the houseguests invited the victim over, not him. (Id.) Third, the houseguest invited her over for the purpose of having intercourse for money, but he did not have enough. (Id., PageID.919.) Fourth, he acknowledged that he had vaginal intercourse with the victim, but he claimed it was consensual. (Id., PageID.918-919.) Fifth, he claimed that it was one of the houseguests who hit the victim with the axe on the stairway, robbed her, and then, despite Petitioner's attempts to stop him, raped the victim on the stairs. (Id., PageID.919-923.)

         Prior to trial, Petitioner's counsel moved to suppress the evidence seized pursuant to the search warrant because the warrant was signed on the strength of a probable cause affidavit that included the victim's lie about the carjacking. (Evid. Hr'g Tr., ECF No. 16-7.) The trial court denied the motion, and would not even proceed with a Franks hearing, [2] because there was no evidence presented suggesting that the officer was aware of the falsity of the information and, further, because even if the false information were eliminated from the affidavit, there was sufficient other true information in the warrant to support a finding of probable cause and the issuance of the warrant. (Id.)

         At trial, Petitioner's counsel suggested to the jury that the victim was still not credible with regard to her account of the events. (Trial Tr. III, ECF No. 16-10, PageID.973-983.) Counsel claimed that it simply did not make sense that the victim left the marijuana in the car. (Id.) Counsel's closing, in its entirety, suggested that the victim came to sell sexual services, not marijuana.

         The jury deliberated for only a couple of hours before returning its split verdict.[3] (Trial Tr. IV, ECF No. 16-11.) The court sentenced Petitioner as described above.

         Petitioner, with the assistance of counsel, directly appealed his convictions and sentences to the Michigan Court of Appeals raising the seven issues listed above. The court of appeals affirmed the trial court in all respects by unpublished opinion issued January 12, 2016. (Mich. Ct. App. Op., ECF No. 16-13, PageID.1067-1076.) Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court, again raising the seven issues listed above. (Pet'r's Appl. for Leave to Appeal, ECF No. 16-14, PageID.1251-1275.) The supreme court denied leave by order entered November 30, 2016. (Mich. Order, ECF No. 16-14, PageID.1250.) Just before the first anniversary of that decision, Petitioner filed this petition.[4]

         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. Sufficiency of the Evidence (Habeas ...


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