United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
M. LAWSON UNITED STATES DISTRICT JUDGE
result of physical abuse and neglect, which the state court
described as “grievous, ” April Foster's
six-year-old daughter died of pneumonia. Foster was convicted
of torture, child abuse, and first-degree felony murder and
sentenced to life in prison without the possibility of
parole. Finding no relief in the state appellate courts, she
filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 alleging that her trial should have been severed
from her co-defendant's, her lawyer was constitutionally
ineffective, the prosecutor committed misconduct, and the
cumulative effect of these alleged violations deprived her of
a fair trial. Because the state courts adjudicated
Foster's claims consistently with controlling federal
law, and none of them support issuance of the writ, the Court
will deny the petition.
her daughter, Avril Johnson (AJ), passed away, Foster was
tried with a co-defendant, David Hairston, before a jury in
the Wayne County, Michigan circuit court. The Michigan Court
of Appeals summarized the facts in its opinion on direct
appeal as follows:
Defendant's convictions arise from the death of her
six-year-old daughter, AJ. The evidence at trial established
that defendant and co-defendant Da vi d Hairston subjected AJ
and AJ's sister, KJ, to grievous physical abuse and
neglect. As a consequence of this abuse and neglect, AJ then
died of “bilateral bronchial pneumonia associated with
neglect and abusive injuries.” More specifically, at
trial, a forensic pathologist explained that AJ's
extensive physical injuries and her history of neglect left
her in a weakened physical state which prevented her body
from fighting off the pneumonia. Defendant and Hairston were
tried jointly before one jury, and both were convicted.
People v. Foster, No. 317444, 2015 WL 213123 (Mich.
Ct. App. Jan. 15, 2015).
jury found Foster guilty of first-degree felony murder, Mich.
Comp. Laws § 750.316(1)(b), first-degree child abuse,
Mich. Comp. Laws § 750.136b(2), third-degree child
abuse, Mich. Comp. Laws § 750.136b(5), and two counts of
torture, Mich. Comp Laws § 750.85(1), one count of which
involved AJ's sister, KJ. Hairston was convicted of
first-degree felony murder, first-degree child abuse, and two
counts of torture.
trial court sentenced the petitioner to life in prison
without parole for first-degree felony murder and lesser
term-of-year sentences on the other crimes. Foster's
convictions were affirmed on appeal. People v.
Foster, 2015 WL 213123, lv. den. 498 Mich. 855,
864 N.W.2d 578 (2015).
petition for a writ of habeas corpus alleges the following
grounds for relief:
I. The petitioner was prejudiced and denied a fair trial by
being tried jointly with her co-defendant.
II. Ineffective assistance of counsel.
III. The prosecutor committed misconduct during her closing
IV. The cumulative effect of the errors in this case deprived
the petitioner of federal and state due process rights.
Pet. at 5-10, ECF No. 1, PageID.5-10.
warden filed an answer to the petition raising the defense of
procedural default. The “procedural default”
argument is a reference to the rule that the petitioner did
not preserve properly some of her claims in state court, and
the state court's ruling on that basis is an adequate and
independent ground for the denial of relief. Coleman v.
Thompson, 501 U.S. 722, 750 (1991). The Court finds it
unnecessary to address this procedural question. It is not a
jurisdictional bar to review of the merits, Howard v.
Bouchard, 405 F.3d 459, 476 (6th Cir. 2005), and
“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)). This procedural
defense will not affect the outcome of this case, and it is
more efficient to proceed directly to the merits.
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214
(Apr. 24, 1996), which govern this case,
“circumscribe[d]” the standard of review federal
courts must apply when considering an application for a writ
of habeas corpus raising constitutional claims, including
claims of ineffective assistance of counsel. See Wiggins
v. Smith, 539 U.S. 510, 520 (2003). A federal court may
grant relief only if the state court's adjudication
“resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States, ” or if the adjudication ...