United States District Court, W.D. Michigan, Southern Division
Honorable Paul L. Maloney
REPORT AND RECOMMENDATION
PHILLIP J. GREEN, UNITED STATES MAGISTRATE JUDGE
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
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,
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,
II. [Petitioner's] Fourth Amendment rights [were]
violated where the [search] warrant was premised on false
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
V. The trial court abused its discretion by erroneously
scoring offense variables 4, 7, and 10 contrary to the
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.
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.)
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
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.
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.)
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.)
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.
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
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)
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.)
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.
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.
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.)
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,  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.
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
jury deliberated for only a couple of hours before returning
its split verdict. (Trial Tr. IV, ECF No. 16-11.) The court
sentenced Petitioner as described above.
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.
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
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.
Sufficiency of the Evidence (Habeas ...