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Foster v. Stewart

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

July 30, 2019

APRIL FOSTER, Petitioner,



         As a 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.


         After 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).

         The 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.

         The 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).

         Foster's 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 arguments.
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.

         The 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.


         Certain 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 ...

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