United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITION FOR WRIT OF HABEAS
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE
Eric Bennett (“Petitioner”), confined at the
Central Michigan Correctional Facility in St. Louis,
Michigan, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In his pro se application,
Petitioner challenges his convictions for third-degree
criminal sexual conduct, Mich. Comp. Laws §
750.520d(1)(b); and fourth-degree criminal sexual conduct,
Mich. Comp. Laws § 750.520e(1)(b)(i). For the reasons
that follow, the petition for writ of habeas corpus is
was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. This Court recites verbatim
the relevant facts regarding Petitioner's conviction from
the Michigan Court of Appeals' opinion affirming his
conviction, which are presumed correct on habeas review
pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
On the night at issue, Bennett came home from work and did
not want to wake his fiancée and young child, so he
went to the basement of his apartment complex and lay down on
a mattress in the laundry room. Another resident at the
apartment complex, DT, awoke in the middle of the night and
realized that she left a load of laundry in the washer. DT
went downstairs to the laundry room to move the clothes from
the washer to a dryer. After she entered the laundry room,
Bennett approached her, introduced himself using his full
name, and had a brief conversation with her.
DT testified that she felt uncomfortable with Bennett in the
room and tried to leave. Bennett moved up to her, put his
hands under her pajamas, and groped her bare breasts and
buttocks. He then used his fingers to separate her labia in
an attempt to digitally penetrate her. DT finally got away
from him, ran to her apartment, and called 911.
DT told responding police officers that they could find the
perpetrator in the basement. The police went to the basement
and found Bennett sleeping on a mattress. He smelled of
intoxicants and matched the description given by DT. Bennett
told the officers that he had conversed with a woman who
identified herself as “T, ” but initially denied
having any physical contact with her. He later told an
officer that he had massaged T's shoulders and that his
hand might have brushed against her buttocks when she slipped
as he helped her with the laundry.
DT attended a corporal [sic] lineup, but selected a differed
[sic] individual. At trial, Bennett's lawyer attacked
DT's credibility, noting her failure to identify Bennett
in the lineup and inconsistencies in recounting what
occurred. Bennett's lawyer also argued that DT had
various motives, including financial, for falsely accusing
The jury, however, found DT credible and found Bennett
guilty. Bennett now appeals.
People v. Bennett, No. 311903, 2014 WL 2218711, at
*1 (Mich. Ct. App. May 27, 2014).
conviction was affirmed on appeal. Id., lv. den. 497
Mich. 948 (2014).
filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, which was held in abeyance to permit
Petitioner to return to the state courts to exhaust
additional claims. Bennett v. Trierweiler, No.
4:16-CV-11253, 2016 WL 1699536 (E.D. Mich. Apr. 28, 2016).
filed a post-conviction motion for relief from judgment
pursuant to M.C.R. 6.500, et. seq. which the trial
court denied. People v. Bennett, No. 2012-239748-FH
(Oakland Cty. Cir. Ct. Dec. 7, 2016). The Michigan appellate
courts denied Petitioner leave to appeal. People v.
Bennett, No. 338668 (Mich. Ct. App. Nov. 8, 2017);
lv. den. 915 N.W.2d 364 (2018).
November 26, 2018, this Court granted Petitioner's motion
to reopen the case to the Court's active docket and
permitted him to file an amended habeas petition. ECF No. 13.
Petitioner seeks habeas relief on the following grounds:
I. Petitioner was deprived of his state and federal
constitutional right to effective assistance of counsel, when
his attorney failed to admit evidence as to Petitioner's
accuser's motive to fabricate the allegations against
II. Petitioner was deprived of his state and federal
constitutional right to effective assistance of counsel when
his attorney failed to move for suppression of the statements
he made before he received a Miranda warning.
III. Petitioner was deprived of his state and federal
constitutional right to effective assistance of counsel where
his attorney failed to object to the prosecutor arguing that
Petitioner's post-arrest, post-Miranda silence
was substantive evidence of guilt in violation of
Petitioner's Fifth and Fourteenth Amendment due process
IV. Petitioner was deprived of his state and federal
constitutional right to effective assistance of counsel when
his attorney introduced the testimonial hearsay statement of
a non-testifying witness accusing Petitioner of prior bad
acts into evidence in violation of Petitioner's Sixth
Amendment right under the Confrontational Clause.
V. Petitioner was deprived of his state and federal
constitutional right to effective assistance of counsel when
his attorney failed to move for suppression of
complainant's in-court identification of Petitioner at
trial following an unduly suggestive pre-trial confrontation,
where no independent basis was established.
VI. Petitioner was deprived of his Fifth Amendment privilege
against compelled self-incrimination and his Sixth Amendment
right to counsel (1) where before and after signing a
Miranda rights form, police repeatedly denied
Petitioner's unequivocal request to have his attorney
present during a custodial interrogation; (2) after
Petitioner re-invoked his right to counsel, police continued
to question Petitioner, thus, the Miranda waiver
form was invalid; and (3) admission of Petitioner's
statements into evidence by the trial court was not harmless
VII. Petitioner was deprived of his state and federal
constitutional right to effective assistance of appellate
counsel where counsel failed to raise on appeal or timely
inform Petitioner to raise in his Standard 4 brief on direct
appeal (1) ineffective assistance of trial counsel for
failure to object to a Brady violation; and (2)
prosecution's inflammatory closing remarks on improperly
admitted character evidence.
U.S.C. § 2254(d) provides that:
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.
decision of a state court is “contrary to”
clearly established federal law if the state court arrives at
a conclusion opposite to that reached by the Supreme Court on
a question of law or if the state court decides a case
differently than the Supreme Court has on a set of materially
indistinguishable facts. Williams v. Taylor, 529
U.S. 362, 405-06 (2000). An “unreasonable
application” occurs when “a state court decision
unreasonably applies the law of [the Supreme Court] to the
facts of a prisoner's case.” Id. at 409. A
federal habeas court may not “issue the writ simply
because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.” Id.
Supreme Court explained that “[A] federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). 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 v. Murphy,
521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).
“[A] state 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)). Therefore, in order to obtain habeas relief in
federal court, a state prisoner is required to show that the
state court's rejection of his or her claim “was so
lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103. A habeas Petitioner
should be denied relief as long as it is within the
“realm of possibility” that fairminded jurists
could find the state court decision to be reasonable. See
Woods v. Etherton, 136 S.Ct. 1149, 1152 (2016).
Ineffective assistance of counsel
first five claims, Petitioner argues that he was denied the
effective assistance of trial counsel.
that he was denied the effective assistance of counsel under
federal constitutional standards, a defendant must satisfy a
two- prong test. First, the defendant must demonstrate that
counsel's performance was so deficient that the attorney
did not function as the “counsel” guaranteed by
the Sixth Amendment. Strickland v. Washington, 466
U.S. 668, 687 (1984). In so doing, the defendant must
overcome a strong presumption that counsel's behavior
lies within the wide range of reasonable professional
assistance. Id. In other words, the defendant is
required to overcome the presumption that, under the
circumstances, the challenged action might be sound trial
strategy. Strickland, 466 U.S. at 689.
the defendant must show that such performance prejudiced his
or her defense. Id. To demonstrate prejudice, the
defendant must show that “there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different.” Strickland, 466 U.S. at 694.
“Strickland's test for prejudice is a
demanding one. ‘The likelihood of a different result
must be substantial, not just conceivable.'”
Storey v. Vasbinder, 657 F.3d 372, 379 (6th Cir.
2011) (quoting Harrington, 562 U.S. at 112). The
Supreme Court's holding in Strickland places the
burden on the defendant who raises a claim of ineffective
assistance of counsel to show a reasonable probability that
the result of the proceeding would have been different but
for counsel's allegedly deficient performance. See
Wong v. Belmontes, 558 U.S. 15, 27 (2009).
habeas review, “the question ‘is not whether a
federal court believes the state court's
determination' under the Strickland standard
‘was incorrect but whether that determination was
unreasonable-a substantially higher threshold.'”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)
(quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). “The pivotal question is whether the state
court's application of the Strickland standard
was unreasonable. This is different from asking whether
defense counsel's performance fell below
Strickland's standard.” Harrington v.
Richter, 562 U.S. at 101. Indeed, “because the
Strickland standard is a general standard, a state
court has even more latitude to reasonably determine that a
defendant has not satisfied that standard.”
Knowles, 556 U.S. at 123 (citing Yarborough v.
Alvarado, 541 U.S. at 664). Pursuant to the §
2254(d)(1) standard, a “doubly deferential judicial
review” applies to a Strickland claim brought
by a habeas Petitioner. Id. This means that on
habeas review of a state court conviction, “[A] state
court must be granted a deference and latitude that are not
in operation when the case involves review under the
Strickland standard itself.”
Harrington, 562 U.S. at 101.
of this doubly deferential standard, the Supreme Court has
Federal habeas courts must guard against the danger of
equating unreasonableness under Strickland with
unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel's actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied
Strickland's deferential standard.
Harrington v. Richter, 562 U.S. at 105.
addition, a reviewing court must not merely give defense
counsel the benefit of the doubt but must also affirmatively
entertain the range of possible reasons that counsel may have
had for proceeding as he or she did. Cullen v.
Pinholster, 563 U.S. 170, 196 (2011).
argues that this Court should not employ AEDPA's
deferential standard with respect to several of his
ineffective assistance of trial counsel claims because the
Michigan Court of Appeals did not reach the prejudice prong
of the Strickland standard in rejecting those
claims. ECF No. 9 Page.ID 498.
Sixth Circuit has found that when a state court only
addresses one prong of the Strickland test in
rejecting a habeas Petitioner's ineffective assistance of
counsel claim, the federal habeas court should review that
prong under the AEDPA's deferential standard of review
but apply de novo review to the other prong.
See, e.g., Rayner v. Mills, 685 F.3d 631, 636-39
(6th Cir. 2012). This is a “peculiar rule” that
is contrary to both the letter and the spirit of §
2254(d), and consequently one that the Sixth Circuit
subsequently questioned. See Hodges v. Colson, 727
F.3d 517, 537, n. 5 (6th Cir. 2013). The Sixth Circuit in
Hodges believed that the panel in Rayner
had ignored the Supreme Court's language in
Harrington which indicated:
Where a state court's decision is unaccompanied by an
explanation, the habeas petitioner's burden still must be
met by showing there was no reasonable basis for the state
court to deny relief. This is so whether or not the state
court reveals which of the elements in a multipart claim it
found insufficient, for § 2254(d) applies when a
“claim, ” not a component of one, has been
Id. (quoting Harrington, 562 at 98)
Sixth Circuit also noted in Hodges that their prior
holding in Rayner created a “peculiar
rule” by which “the more information the state
court provides, the less deference we grant it. This is
contrary not only to the language of the statute, which
speaks of “claims, ” not components of claims,
but also contrary to the spirit of § 2254(d), which is
designed to give more deference to a state court judgment on
the merits.” Id.
to Harrington, AEDPA's deferential standard of
review applies, even if the Michigan Court of Appeals did not
explicitly address the prejudice prong of some of the
ineffective assistance of counsel claims. Moreover, as
discussed below, the Michigan Court of Appeals found that
trial counsel was not deficient. Such a finding
“implicitly, but unequivocally, encompasses a finding
that the performance did not prejudice the defendant.”
Hodges, 727 F.3d at 537, n.5.
first claim, Petitioner argues that trial counsel was
ineffective for failing to introduce a letter from a law firm
who represented the victim, DT, to establish that she had a
financial incentive to falsely accuse Petitioner of sexual
Michigan Court of Appeals rejected the claim:
Bennett first argues that his lawyer should have introduced a
letter from a law firm notifying the apartment complex that
DT hired a lawyer regarding allegations of injuries, which
included rape. Bennett's lawyer questioned DT about the
letter at trial, but did not seek its admission. Bennett
contends that the letter would have impeached DT's
credibility by showing that she had a financial motive to
falsely accuse him of sexual assault.
In the letter, the writer indicates that the law office had
been retained to represent DT in connection with
“injuries suffered in an accident, which occurred . . .
on March 11, 2011. The injuries include, but are not limited
to rape.” At trial, DT admitted that she hired a
lawyer, but denied that it was in relation to the November 3,