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Overton v. Trierweiler

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

June 4, 2019

RANDALL SCOTT OVERTON, Petitioner,
v.
TONY TRIERWEILER, Respondent.

          OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND (2) GRANTING A PARTIAL CERTIFICATE OF APPEALABILITY

          HON. NANOY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Randall Scott Overton, ("Petitioner"), a Michigan prisoner, filed this petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner was convicted after a jury trial held in the Wayne Circuit Court of one count of first-degree criminal sexual conduct (CSC-1), Mich. Comp. Laws § 75O.52Ob(1)(a), one count of second-degree criminal sexual conduct (CSC-2), Mich. Comp. Laws § 75O.52Oc(1)(a), and three counts of gross indecency. Mich. Comp. Laws § 750.338b. The trial court sentenced Petitioner to concurrent prison terms of 25 to 40 years for the CSC-1 conviction, 29 months to 15 years for the CSC-2 conviction, and 17 months to 5 years for each gross indecency conviction.

         The petition, filed through counsel, raises thirteen claims: (1) the prosecutor presented insufficient evidence to demonstrate that Petitioner engaged in the sexual penetration of another person as required by the CSC-1 statute, (2) Petitioner lacked constitutional notice that "sexual penetration" under the CSC-1 statute included acts of defendant-directed self-penetration by the victim, (3) the jury instructions allowing for a conviction of CSC-1 based on defendant-directed self-penetration were erroneous, (4) Petitioner's 25-year minimum sentence for his CSC-1 conviction is grossly disproportionate to the severity of his crime, (5) the evidence was insufficient to sustain Petitioner's CSC-2 conviction, (6) Petitioner lacked constitutional notice that his conduct violated the gross indecency statute, (7) the evidence was insufficient to sustain Petitioner's gross indecency conviction, (8) the jury instructions regarding gross indecency were erroneous, (9) Petitioner was denied his right to present a defense when he was precluded from admitting his videotaped statement to police, (10) Petitioner was denied the effective assistance of counsel at trial, (11) Petitioner was denied the effective assistance of appellate counsel, (12) the cumulative effect of Petitioner's counsels' errors denied Petitioner his right to a fair trial, and (13) Petitioner can demonstrate cause and prejudice for failing to raise his post-conviction claims in his appeal of right.

         The Court will deny the petition because Petitioner's claims are without merit. The Court will grant Petitioner a certificate of appealability with respect to the claim that he lacked notice that his conduct violated the CSC-1 statute, but it will deny a certificate with respect to his other claims.

         I. Background

         Petitioner was the boyfriend of the victim's mother, his co-defendant Pope. The charges concerned allegations that Petitioner ordered the victim to penetrate her vagina with her finger (the basis for the CSC-1 charge), rubbed ointment on the victim's pubic area and shaved her pubic hair (the basis for the CSC-2 charge), and made the victim submit to "virginity checks" (the basis for the gross indecency charges). Petitioner was convicted as indicated above. Pope was convicted of obstruction of justice for instructing the victim to reword her statement and conceal information for a Kids Talk interview arranged by Child Protective Services.

         The Michigan Court of Appeals summarized the evidence presented at the joint trial as follows:

Pope and Overton had been in a relationship from the time the victim was age four or five. When the victim was a young adolescent, Pope examined the victim's genital area for a "virginity check." Overton also examined the victim's genital area at that time. Subsequently, Overton required the victim to submit to periodic "virginity checks," during which Overton visually inspected her genitals. The victim testified that these incidents occurred while she was alone with Overton at his residence. On the basis of this testimony, Overton was convicted of three counts of gross indecency.
The victim also testified that Overton once used a mirror to visually observe the victim's genitals while instructing the victim to insert her finger inside her vagina, under the pretext of teaching her how to use a tampon. This testimony was the basis for Overton's CSC-I conviction. The victim further testified that on another occasion, Overton shaved her pubic hair and then applied ointment to the area. This testimony was the basis for Overton's CSC-I I conviction.
After the victim disclosed the sexual abuse, investigator Amanda Doss of Children's Protective Services (CPS) arranged for a forensic interview of the victim at a Kids Talk agency. Doss informed Pope that neither Pope nor Overton was allowed to drive the victim to the agency for the interview. Nonetheless, Pope drove the victim to the agency. According to the victim, on the night before the interview and on the ride to the interview, Pope instructed her to reword her statements and to conceal information. Pope's disregard of Doss's instructions and her attempt to influence the victim's statements were the basis for her conviction of obstruction of justice.

People v. Overton, 2013 WL 5857775, at *1 (Mich. Ct. App. Oct. 31, 2013).

         Following his conviction and sentence, Petitioner filed a motion for a new trial. The motion asserted claims regarding the sufficiency of the evidence presented as to each of Petitioner's convictions, that Petitioner did not have constitutionally adequate notice that the conduct at issue violated the gross indecency statute, that the jury instructions on the elements of the offenses of conviction were erroneous, that Petitioner's 25-year mandatory minimum sentence for his CSC-1 conviction violated the Eighth Amendment, that the court erred in excluding the video recording of Petitioner's interview with police, and that Petitioner's trial counsel was ineffective. Dkt. 5-15 and 5-16. The trial court held oral argument on the motion and denied it on the record. Dkt. 5-18 and 5-19.

         Petitioner then filed a claim of appeal. His brief on appeal raised the following claims:

I. The evidence produced at trial by the prosecution is legally insufficient to convict Mr. Overton of first degree criminal sexual conduct.
II. The evidence produced at trial by the prosecution is legally insufficient to convict Mr. Overton of second degree criminal sexual conduct.
III. Mr. Overton's due process rights were violated because the jury instructions regarding second degree criminal sexual conduct were deficient and the jury verdict may not have been unanimous.
IV. Mr. Overton's convictions for gross indecency should be vacated because the evidence presented at trial was insufficient to sustain the convictions.
V. Mr. Overton's due process rights were violated because the jury instructions were deficient. Further, Mr. Overton did not have constitutionally adequate notice that the behavior at issue violated the gross indecency statute.
VI. Mr. Overton was denied his constitutional right to the effective assistance of counsel.
VII. The trial court abused its discretion and violated Mr. Overton's due process right to present a defense by precluding Mr. Overton from presenting the entire video interview under the rule of completion.
VIII. Mr. Overton's mandatory 25-year minimum sentence constitutes cruel or unusual punishment in violation of the state and federal constitutions.

         The Michigan Court of Appeals affirmed Petitioner's convictions and sentences in an unpublished opinion. Overton, 2013 WL 5857775.

         Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court that raised the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court ordered oral argument on the application, but it denied the application over the dissent of the two Justices. People v. Overton, 857 N.W.2d 11 (Mich. 2014) (Table). Justice McCormick expressed an opinion that the CSC-1 statute did not encompass cases in which a victim engaged in sexual penetration of herself, and allowing for such an interpretation would give rise to potential overbreadth concerns and potentially criminalize innocent acts "such as a mother instructing her daughter about genital hygiene." Id.

         Picking up on this line of reasoning Petitioner returned to the trial court and filed a motion for relief from judgment, raising the following claims:

I. Mr. Overton has insufficient notice that his conduct was unlawful because the Michigan Courts improperly broadened the precise and narrow definition of "sexual penetration" under the Michigan criminal sexual conduct statute to include self-penetration, and thereby retroactively criminalized his behavior - violating the defendant's right to due process of the law.
II. Jury instructions regarding the first-degree criminal sexual conduct were erroneous and violated the defendant's right to due process of the law.
III. Defendant did not receive effective assistance of trial counsel in violation of the Sixth and Fourteenth Amendments.
IV. Defendant did receive effective assistance of appellate counsel in violation of the Sixth and Fourteenth Amendments because appellate counsel failed to raise meritorious appellate issues.
V. There is both cause and prejudice that excuses the failure of the defendant to raise the issues in this motion on direct appeal.

         The trial court denied the motion for relief from judgment. The opinion rejecting the motion both discussed the merits of Petitioner's post-conviction claims, and it also found that review was barred because Petitioner failed to demonstrate actual prejudice under Michigan Court Rule 6.508(D)(3)(b). Dkt. 5-23.

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals that raised the same claims, but the court denied the application because Petitioner "failed to establish that the trial court erred in denying his motion for relief from judgment." Dkt. 5-24; People v. Overton, No. 330875, Mich. Ct. App. Order (April 28, 2016). Petitioner applied for leave to appeal this decision to the Michigan Supreme Court, but the appeal was denied under Michigan Court Rule 6.508(D). Dkt. 5-25; People v. Overton, 888 N.W.2d 77 (Mich. 2016) (Table).

         II. Standard of Review

         28 U.S.C. § 2254(d)(1) curtails a federal court's review of constitutional claims raised by a state prisoner in a habeas action if the claims were adjudicated on the merits by the state courts. Relief is barred under this section unless the state court adjudication was "contrary to" or resulted in an "unreasonable application of clearly established Supreme Court law.

         "A state court's decision is 'contrary to' . . . clearly established law if it 'applies a rule that contradicts the governing law set forth in [Supreme Court cases]' or if it 'confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [this] precedent."' Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003), quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

         "[T]he 'unreasonable application' prong of the statute permits a federal habeas court to 'grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court but unreasonably applies that principle to the facts' of petitioner's case." Wiggins v. Smith, 539 U.S. 510, 520 (2003) quoting Williams, 529 U.S. at 413.

         "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal.... As a condition for obtaining habeas corpus from a federal court, a state prisoner must 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." Harrington, 562 U.S. at 103 (internal quotation omitted).

         III. Analysis

         A. Procedural Default

         Respondent contends that several of Petitioner's claims are procedurally defaulted because the claims were not raised on direct review. Under the procedural default doctrine, a federal habeas court will not review a question of federal law if a state court's decision rests on a substantive or procedural state law ground that is independent of the federal question and is adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729 (1991). However, procedural default is not a jurisdictional bar to review of a habeas petition on the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally, "federal courts are not required to address a procedural-default issue before deciding against the petitioner on the merits." Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. Singletary, 520 U.S. 518, 525 (1997)). It may be more economical for the habeas court to simply review the merits of the petitioner's claims, "for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law." Lambrix, 520 U.S. at 525.

         The Court deems it more efficient to proceed directly to the merits of the claims raised by Petitioner on state post-conviction review. First, Petitioner alleges that his attorneys were ineffective for failing to preserve the defaulted claims by presenting them on direct review. A discussion of whether Petitioner's appellate counsel was ineffective for omitting those claims entails at least in some limited way a discussion regarding the relative merit of the omitted claims. Second, the default argument regarding several of Petitioner's claims is complicated to the extent Petitioner asserts that the error was a result of the grounds of decision by the Michigan Court of Appeals on direct review. Petitioner asserts that the construction of the CSC-1 and gross indecency statutes given by the Michigan Court of Appeals on direct review gave rise to his lack of notice claims. Accordingly, the Court will proceed to the merits of Petitioner's claims.

         B. Claims Related to "Sexual Penetration" Element ...


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