United States District Court, E.D. Michigan, Southern Division
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
A. GOLDSMITH, UNITED STATES DISTRICT JUDGE
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
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.
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.
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.
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.
did not testify in his own defense.
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.
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).
then filed the pending habeas corpus petition, raising these
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