Nevills v. Haas

          OPINION & ORDER (1) DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS, (2) DENYING A CERTIFICATE OF APPEALABILITY, AND (3) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Damion Nevills, Jr. (“Petitioner”) was convicted of two counts of first-degree criminal sexual assault (“CSC-1”), Mich. Comp. Laws § 750.520b(2)(b), following a jury trial in the Berrien County Circuit Court. He was sentenced as a second habitual offender, Mich. Comp. Laws § 769.10, to concurrent terms of 25 to 75 years imprisonment in 2015. In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the imposition of a fine, and the validity of his sentence. Respondent has filed an answer to the petition contending that it should be denied. For the reasons set forth, the Court concludes that Petitioner's claims lack merit and the petition must be denied. The Court also concludes that a certificate of appealability and leave to proceed in forma pauperis on appeal must be denied.

         I. BACKGROUND

         Petitioner's convictions arise from his sexual assault of a 12-year-old girl, whom he met at a park, at his home in Benton Harbor, Michigan in July 2014. The Michigan Court of Appeals described the relevant facts, which are presumed correct on habeas review, 28 U.S.C. § 2254(e)(1); Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:

The 19-year-old defendant met the 12-year-old complainant at a park in Benton Harbor. The complainant testified that defendant invited her back to his house while defendant claimed she followed him. Although defendant insists nothing happened between the two, the complainant painted a very different version of events. Specifically, the complainant accused defendant of using physical force to keep her in the house when she tried to leave, pushing her head down to force her to perform fellatio, and penetrating her vagina with his penis without consent.

Eventually, the mother of complainant's friend found her at defendant's home. Various witnesses asserted that complainant did not appear upset and seemed fine at the time. The complainant waited three days to tell her parents about the assault.

Nurse Mindy O'Brien conducted a post-sexual assault medical examination on complainant. The complainant reported to O'Brien that defendant had “pulled off her pants” and stuck his penis into her vagina, describing this as extremely painful. The complainant further asserted that defendant had put his penis in her mouth and touched her right neck and breast. O'Brien testified that while the complainant cooperated and was polite during their discussion, she was embarrassed and scared about what had happened and expressed fear that she would get in trouble.

O'Brien gave complainant a “head to toe” exam, looking for any injuries. O'Brien discovered circular bruises on the complainant's wrist, thigh, and arm, consistent with fingers. O'Brien also conducted a detailed genital exam. She noted “generalized redness in [the complainant's] vaginal area” when she “pulled back the labia.” O'Brien's inspection of the complainant's hymen revealed two lacerations consistent with intercourse and “something being very forcefully jammed in there” at an angle “a lot of times.”

O'Brien was unable to date complainant's bruises or her genital injuries. Moreover, complainant told O'Brien that “she had showered, changed her clothes, bathed and washed.” O'Brien found this and the 72 hours between the incident date and exam to be important because “showering, bathing, brushing your teeth” and time can “all affect evidence collection.”

Indeed, the forensic examiner was unable to find a presence of seminal fluid, saliva, and/or sperm cells after examining the physical evidence collected during the complainant's physical examination. He also noted that the DNA reference samples came back negative.

         The jury credited complainant's testimony and convicted defendant as charged. People v. Nevills, No. 328463, 2016 WL 4212273, *1-2 (Mich. Ct. App. Aug. 9, 2016) (footnote omitted) (unpublished).

         Following his convictions and sentencing, Petitioner filed an appeal of right with the Michigan Court of Appeals, raising the same claims presented on habeas review. The court ruled that the $ 100 fine was imposed without statutory authority and vacated that portion of the judgment, but denied relief on the other claims and otherwise affirmed Petitioner's convictions and sentences. Id. at *2-5. Petitioner filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Nevills, 893 N.W.2d 636 (Mich. 2017).

         Petitioner thereafter filed his federal habeas petition raising the following claims:

I. His convictions fail the sufficiency test and should be set aside.

II. The circuit court improperly assessed a $100 fine without statutory authority.

III. The Legislature's 25-year mandatory minimum, MCL 750.520b(2)(b), violates the ...