United States District Court, E.D. Michigan, Southern Division
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
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
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.
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
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.
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
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).
thereafter filed his federal habeas petition raising the
I. His convictions fail the sufficiency test and should be
II. The circuit court improperly assessed a $100 fine without
III. The Legislature's 25-year mandatory minimum, MCL
750.520b(2)(b), violates the ...