United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
F. COX UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner William Darnell Collier
(“Petitioner”) was convicted of three counts of
first-degree criminal sexual conduct, Mich. Comp. Laws §
750.520b(1)(f), and one count of unlawful imprisonment, Mich.
Comp. Laws § 750.349(b), following a jury trial in the
Kalamazoo County Circuit Court. He was sentenced, as a fourth
habitual offender, Mich. Comp. Laws § 769.12, to
concurrent terms of 25 to 60 years imprisonment on those
convictions in 2010. In his habeas petition, as amended, he
raises claims concerning the trial court's denial of a
mistrial motion, the effectiveness of trial and appellate
counsel, the validity of his sentence, and the trial
court's delay in notifying him of its most recent
collateral review decision. For the reasons stated herein,
the Court denies the petition for a writ of habeas corpus,
denies a certificate of appealability, and denies leave to
proceed in forma pauperis on appeal.
Facts and Procedural History
convictions arise from his sexual assault of a female
acquaintance at his residence in Kalamazoo, Michigan in
September, 2009. The Michigan Court of Appeals described the
relevant facts, which are presumed correct on habeas review,
28 U.S.C. § 2254(e)(1); Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009), as follows:
Defendant's convictions arise from an arrangement in
which the victim agreed to have sexual intercourse with
defendant in exchange for crack cocaine. The victim and
defendant procured the drugs and returned to defendant's
apartment. The victim and defendant smoked the crack cocaine
and engaged in consensual sexual conduct. After the crack
cocaine was gone, the victim and defendant decided to obtain
more crack cocaine and each contributed $10 toward that
endeavor. Defendant drove the victim to a place where drugs
could be purchased and the victim purchased the drugs.
Defendant and the victim returned to defendant's
apartment and smoked the crack cocaine. The victim testified
that after smoking the crack cocaine she informed defendant
she was leaving. Defendant responded by striking her in the
head and telling her to remove her clothing. Defendant
attempted to forcibly engage in vaginal intercourse with the
victim and also forced her to perform oral sex. At one point,
the victim grabbed a screwdriver and attempted to stab
defendant and escape, but defendant grabbed her arm before
she could stab him and struck her. Eventually, the victim was
able to escape and later reported the incident to police.
People v. Collier, No. 299928, 2011 WL 5870058, *1
(Mich. Ct. App. Nov. 22, 2011)(unpublished).
state court collateral review, the trial court provided a
more detailed description of the trial testimony. Those facts
are as follows:
The victim testified that she had agreed to have sex with
Collier in exchange for crack cocaine. He picked her up in an
area of Kalamazoo he knew to be frequented by prostitutes.
The victim knew Collier from previous interactions. Neither
indicated anyone else was present when Collier picked up the
victim. They purchased the crack at the apartment of someone
they both knew, Michelle. Collier had dated Michelle. Collier
and the victim smoked crack cocaine together in Collier's
apartment, and attempted to have consensual sex. However, the
victim testified, Collier was unable to maintain an erection
because of the crack cocaine so they did not succeed in
having sex. After some time, they left Collier's
apartment together to get more crack cocaine at
Michelle's, and returned to Collier's apartment. When
the two of them had smoked all of the crack cocaine, the
victim announced that she was going to leave and proceeded to
put on her shoes. Collier struck the victim on the back of
her head and the face and told her she was not going to leave
until she performed oral sex on him. The victim started to
comply, and then Collier made her get on the bed and
attempted again to have intercourse. As before, the victim
explained, Collier could not maintain an erection because of
the crack cocaine. In spite of this, Collier insisted on
repeated attempts at oral and vaginal sex. The victim was
afraid because Collier repeatedly told the victim he would
At one point, the victim spotted a screwdriver near the chair
where Collier was sitting. She picked up the screwdriver as
she leaned over to perform oral sex on Collier. The victim
was going to stab Collier with the screwdriver in order to
get away, but he grabbed her hand and struck her again,
causing her to bleed from a wound on her head. Collier threw
the victim on the bed and attempted vaginal sex. The victim
testified that Collier eventually succeeded, and got off of
her. She took that opportunity to grab her clothes and run
out of the bedroom and then out of the apartment.
After leaving Collier's apartment, the victim stopped at
the nearby apartment of an acquaintance for help getting a
ride home to the north side of Kalamazoo. There were a number
of people there that the victim did not know. The victim
succeeded in returning to her neighborhood. She was going to
go to Michelle's, but saw Collier's car parked
outside so she went to a friend's house nearby instead.
Frank Ricky Spencer, the friend, testified the victim
appeared in shock, was bloody and beat up, and said she had
been raped. The victim picked up a length of metal pipe and
commented that she wanted to get revenge on the man who raped
her. Spencer testified he and his friends wrestled the pipe
away from the victim, and tried to talk her into going to the
hospital and calling the police.
The victim left Spencer's and went back to Michelle's
apartment, a block away. At Michelle's apartment, the
victim found and confronted Collier. The victim had the pipe
she picked up at Spencer's, and threatened Collier with
it. Others held her back and Collier was asked to leave. No.
one, including the victim, contacted police at that time.
The next day, the victim saw someone in her neighborhood she
knew to be an undercover police officer. She told him she had
been raped. The undercover officer called for another officer
to come take the victim's statement and transport her for
medical treatment. A “rape kit” was done, and
staples were placed to close the wound on the victim's
head. The victim did not know Collie's address, but rode
along with an officer and identified Collier's residence.
Collier testified that the two agreed to an exchange of sex
for money, and smoked crack cocaine together. He testified
that they went to his apartment, and some consensual sexual
activity took place. They left to get more crack cocaine.
After smoking the additional crack cocaine, the victim
started “tweaking” and not responding to what
Collier was saying, which caused Collier to become annoyed
with the victim. Collier stated he pushed the victim, causing
her to fall and hit her head on the bed frame. The victim got
up on her own and onto the bed, and Collier, noticing she was
bleeding, tried to help her but she refused. The victim got
angry with Collier, the two began arguing, and the victim
left the apartment. Collier asserted on cross-examination
that the victim was lying in order to get revenge on him.
People v. Collier, No. B-2009-2038-FC, *2-4
(Kalamazoo Co. Cir. Ct. April 12, 2013).
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals asserting that: (1)
the trial court erred in denying his mistrial motion after a
police officer witness referenced Petitioner's parole
agent, and (2) trial counsel was ineffective for failing to
impeach the victim's testimony and failing to object to
hearsay testimony. The court denied relief on those claims
and affirmed Petitioner's convictions. Collier,
2011 WL 5870058 at *1-3. Petitioner then filed an application
for leave to appeal with the Michigan Supreme Court, which
was denied in a standard order. People v. Collier,
491 Mich. 920, 812 N.W.2d 737 (2012).
2013, Petitioner filed his first motion for relief from
judgment with the state trial court asserting that: (1) he
had newly-discovered evidence that the victim lied and had a
prior history of extortion and threats of false rape charges
which would have affected the outcome at trial, (2) trial
counsel was ineffective for failing to locate witnesses and
raise an alibi and actual innocence defense, and (3)
appellate counsel was ineffective for failing to raise the
foregoing issues on appeal. The trial court denied relief on
the claims pursuant to Michigan Court Rule 6.508(D)(3)
because Petitioner failed to demonstrate cause and actual
prejudice. The court also stated that it would not reconsider
trial counsel's effectiveness because that issue was
raised on appeal and that Petitioner failed to establish that
appellate counsel was ineffective. Collier, No.
B-2009-2038-FC at *8-9 (4/12/13 order). Petitioner then filed
a delayed application for leave to appeal with the Michigan
Court of Appeals, which was denied “for failure to meet
the burden of establishing entitlement to relief under MCR
6.508(D).” People v. Collier, No. 317672
(Mich. Ct. App. March 14, 2014). Petitioner also filed an
application for leave to appeal with the Michigan Supreme
Court, which was similarly denied. People v.
Collier, 497 Mich. 854, 852 N.W.2d 176 (2014).
October, 2014, Petitioner filed his initial pro se habeas
petition raising claims concerning the denial of a mistrial
motion and the effectiveness of trial and appellate counsel.
Shortly thereafter, he moved for a stay and abeyance of his
case so that he could return to the state courts to exhaust
his remedies on a “Missouri v. Frye”
issue (an un-communicated plea offer). The Court granted
Petitioner's motion, stayed the proceedings, and
administratively closed the case in December, 2014.
returned to the state trial court and filed a second motion
for relief from judgment asserting that: (1) he obtained
newly-discovered evidence of an un-communicated plea offer
and trial counsel was ineffective for failing to inform him
of that offer, and (2) appellate counsel was ineffective for
failing to raise the foregoing issue on appeal. The trial
court denied relief on those claims finding that they lacked
merit because the plea offer information was not
newly-discovered and, even if it were, Petitioner failed to
show that he would have accepted the offer given his ongoing
protestations of innocence. People v. Collier, No.
B-09-2038-FC (Kalamazoo Co. Cir. Ct. Jan. 7, 2015).
Petitioner filed a delayed application for leave to appeal
with the Michigan Court of Appeals, which was dismissed as
untimely because it was not filed “within the time
period required by MCR 7.502(G)(3).” People v.
Collier, No. 329978 (Mich. Ct. App. Dec. 29, 2015).
Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Collier, 500 Mich. 864, 885 N.W.2d 278
thereafter moved to re-open this habeas case to proceed on an
amended petition raising additional claims concerning the
alleged un-communicated plea offer and the effectiveness of
trial counsel, the effectiveness of appellate counsel, the
validity of his sentence, and the trial court's delay in
notifying him of the denial of his motion for relief from
judgment. The Court granted that motion and re-opened the
case. Respondent subsequently filed an answer to the amended
habeas petition contending that it should be denied because
several claims are procedurally defaulted and all of the
claims lack merit.
Standard of Review
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), codified at 28 U.S.C. § 2241
et seq., sets forth the standard of review that
federal courts must use when considering habeas petitions
brought by prisoners challenging their state court
convictions. The AEDPA provides in relevant part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim--
(1) 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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. §2254(d) (1996).
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
[that] precedent.'” Mitchell v. Esparza,
540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams
v. Taylor, 529 U.S. 362, 405-06 (2000)); see also
Bell v. Cone, 535 U.S. 685, 694 (2002). “[T]he
‘unreasonable application' prong of §
2254(d)(1) 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); see
also Bell, 535 U.S. at 694. However, “[i]n order
for a federal court find a state court's application of
[Supreme Court] precedent ‘unreasonable,' the state
court's decision must have been more than incorrect or
erroneous. The state court's application must have been
Wiggins, 539 U.S. at 520-21 (citations omitted);
see also Williams, 529 U.S. at 409. The “AEDPA
thus imposes a ‘highly deferential standard for
evaluating state-court rulings,' and ‘demands that
state-court decisions be given the benefit of the
doubt.'” Renico v. Lett, 559 U.S. 766, 773
(2010) (quoting Lindh, 521 U.S. at 333, n. 7);
Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per
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)
(citing Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)). The Supreme Court has emphasized “that even a
strong case for relief does not mean the state court's
contrary conclusion was unreasonable.” Id.
(citing Lockyer v. Andrade,538 U.S. 63, 75 (2003)).
Pursuant to § 2254(d), “a habeas court must
determine what arguments or theories supported or ... could
have supported, the state court's decision; and then it
must ask whether it is possible fairminded jurists could
disagree that those arguments or theories are inconsistent
with the holding in a prior decision” of the Supreme
Court. Id. Thus, in order to obtain habeas relief in
federal court, a state prisoner must show that the state
court's rejection of his claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Id; see also
White v. Woodall, 572 U.S. 415, 419-20 (2014). Federal
judges “are required to afford state courts due respect
by overturning their decisions only when there could be no