United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) DENYING PETITION FOR WRIT OF
HABEAS CORPUS, AND (2) GRANTING A PARTIAL CERTIFICATE OF
NANOY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
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
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.
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
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
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).
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.
then filed a claim of appeal. His brief on appeal raised the
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.
Michigan Court of Appeals affirmed Petitioner's
convictions and sentences in an unpublished opinion.
Overton, 2013 WL 5857775.
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
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
V. There is both cause and prejudice that excuses the failure
of the defendant to raise the issues in this motion on direct
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.
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).
Standard of Review
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.
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).
'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.
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
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.
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.
Claims Related to "Sexual Penetration" Element ...