Flynn v. Burt

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

          MARK A. GOLDSMITH, UNITED STATES DISTRICT JUDGE

         Petitioner Timothy Flynn, currently in the custody of the Michigan Department of Corrections, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his convictions for three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(b)(i). The petition raises two claims. For the reasons explained below, the Court denies the petition. The Court denies a certificate of appealability and grants Petitioner leave to proceed on appeal in forma pauperis.

         I. BACKGROUND

         Petitioner's conviction arises from his sexual acts with his girlfriend's teenage daughter, A.T. The prosecution presented a single witness, A.T., who was fifteen years old at the time of trial. She testified that Petitioner was her mother's boyfriend and had been like a father to her since she began living with him when she was seven years old. See 2/27/13 Tr., Ex. 11 to Rule 5 Filing, at 67 (Dkt. 7-11). A.T.'s relationship with Petitioner changed when A.T. was twelve years old. Petitioner began touching her chest and vagina. Id. at 75-76. She specifically recalled an incident in December 2011, when she was either thirteen or fourteen. She and Petitioner were watching television in Petitioner's bedroom when Petitioner began touching her vagina over her clothes, then moved his hand under her clothes and underwear and penetrated her vagina with his finger. Id. at 82-86. He told her not to tell anyone or they would both get in trouble. Id.

         A.T. also testified that Petitioner touched her in January 2012. They were again watching television in Petitioner's bedroom when Petitioner touched her on the outside of her clothing. Id. at 95. He then took off her clothes and penetrated her vagina with his tongue. Id. Finally, in March 2012, Petitioner penetrated her vagina with his penis. Id. at 92-93.

         A.T. did not tell anyone about the abuse until April 2012, when she told her step-mother. Id. at 107. Police investigated and A.T. began living with her father and step-mother. Id. A.T.'s mother did not believe the allegations. Id. at 107-108.

         Petitioner presented numerous witnesses who testified that A.T. was not a truthful person. A.T.'s mother Jacalynn T. testified that, beginning sometime in 2010, A.T. began telling lies. See 3/1/13 Tr., Ex. 13 to Rule 5 Filing, at 31-34 (Dkt. 7-13). The lies became more serious and frequent as time went on. For example, A.T. lied about people dying, having cancer, and being killed in car crashes. Id. at 36. Jacalynn T. sought psychological help for A.T., but she saw no improvement. Id. at 36-46. Petitioner's niece testified that she was close friends with A.T., but no longer communicated with A.T. after April 2012. Id. at 110. She characterized A.T. as a person who is “not very truthful” and has a “reputation of a liar.” Id. at 108. Two of A.T.'s former classmates, N.L. and B.H., testified that she has a reputation for being untruthful. Id. at 120, 122, 126-129.

         Petitioner did not testify in his own defense.

         Following a bench trial in Macomb County Circuit Court, Petitioner was found guilty of three counts of first-degree criminal sexual conduct. On April 10, 2013, he was sentenced to 135 to 360 months for each conviction, to be served concurrently.

         Petitioner filed an application for leave to appeal in the Michigan Court of Appeals. He claimed: (i) the prosecutor acted vindictively by increasing two original third-degree criminal sexual conduct charges to first-degree criminal sexual conduct after Petitioner rejected a plea offer and defense counsel was ineffective for failing to object; and (ii) the verdict was against the great weight of the evidence. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Flynn, No. 316325, 2014 WL 6067544 (Mich. Ct. App. Nov. 13, 2014), lv. denied 868 N.W.2d 871 (Mich. 2015).

         Petitioner then filed the pending habeas corpus petition, raising these claims:

I. The prosecutor violated appellant's due process rights and punished the exercise of his constitutional right to trial by moving to increase counts 2 and 3 from third-degree criminal sexual conduct to first-degree after Petitioner declined to plead guilty. Trial counsel was ineffective for failing to object.

II. The verdict finding Petitioner guilty of three counts of first-degree sexual conduct was against the great weight of the evidence.

         II. ...