United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
Dennis Patrick Byrd, Jr., a prisoner in the custody of the
Michigan Department of Corrections, filed a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. Petitioner
challenges his convictions for four counts of first-degree
criminal sexual conduct and one count of second-degree
criminal sexual conduct. Respondent argues that the petition
should be denied because several claims are procedurally
defaulted, and all of the claims are without merit.
Court denies the petition.
was charged in three separate cases filed in Kent County
Circuit Court with sexually assaulting his two daughters and
a niece. The cases were joined for one trial. The Michigan
Court of Appeals summarized the testimony presented at trial:
In LC No. 11-007338-FC, the victim [Petitioner's niece,
T.P.] testified that when she was 14 years old, defendant
rubbed her legs, pulled her pants down, and rubbed his penis
up and down the outer lips of her vagina. In LC No.
11-007445-FC, the victim [Petitioner's daughter, D.B.]
testified that when she was 12 years old, defendant put his
penis into her vagina. She testified that when she turned 13,
defendant put his mouth on her vagina. In LC No.
11-010105-FC, the victim [Petitioner's daughter, V.B.]
testified that when she was less than 13 years old, defendant
attempted to put his penis in her vagina and managed to put
his penis “beyond the lips” and “in the
crevice, ” but she told defendant to stop because it
hurt. The victim further testified that defendant put his
mouth and tongue on the outer lips of her vagina.
People v. Bird, No. 312874, 2013 WL 6480928, *1
(Mich. Ct. App. Dec. 10, 2013).
was convicted by a Kent County Circuit Court of second-degree
criminal sexual conduct (CSC), Mich. Comp. Laws §
750.520c(1)(b)(ii), as to victim T.P.; two counts of
first-degree CSC, Mich. Comp. Laws § 750.520b(1)(a) and
Mich. Comp. Laws § 750.520b(1)(b)(ii), as to victim
D.B.; and two counts of first-degree CSC, Mich. Comp. Laws
§ 750.520b(1)(a), as to victim V.B. The trial court
sentenced defendant to 5 to 15 years for second-degree CSC,
consecutive terms of 25 to 75 years and 20 to 60 years for
two counts of first-degree CSC in the case involving D.B.,
and to 15 to 60 years for each first-degree CSC conviction in
the case involving V.B.
filed an appeal of right in the Michigan Court of Appeals,
raising these claims: (i) insufficient evidence supported
Petitioner's convictions; (ii) Brady violation;
and (iii) ineffective assistance of counsel. The Michigan
Court of Appeals affirmed Petitioner's convictions.
People v. Bird, No. 312874, 2013 WL 6480928, *1
(Mich. Ct. App. Dec. 10, 2013). The Michigan Supreme Court
denied leave to appeal. People v. Bird, 496 Mich.
filed a motion for relief from judgment in the trial court,
raising these claims: (i) Brady violation; (ii)
prosecutor knowingly elicited false testimony; and (iii)
cause and prejudice established. The trial court denied the
motion. See 4/21/2015 Order, ECF No. 14-12. The
Michigan Court of Appeals denied Petitioner's application
for leave to appeal, People v. Bird, No. 327432
(Mich. Ct. App. Aug. 27, 2015), as did the Michigan Supreme
Court, People v. Bird, 499 Mich. 983 (Mich. 2016).
later filed a petition for a writ of habeas corpus in the
trial court. He argued that the trial court lacked
jurisdiction over him because the warrant and complaint were
issued without probable cause. The trial court denied the
petition. See Bird v. Gus Harrison Correctional
Facility, No. 335468, 2017 WL 4518752 (Mich. Ct. App.
Oct. 10, 2017). Petitioner filed a motion for relief from
judgment which the trial court treated as a motion for
reconsideration of its denial of his petition and denied the
motion. See Id. The Michigan Court of Appeals
affirmed the trial court's decision. Id.
then filed this habeas corpus petition. He raises these
I. Was there sufficient evidence proven by the prosecution
beyond a reasonable doubt that the [petitioner] was guilty of
two counts of criminal sexual conduct first degree as to
[D.B.] and [V.B.], and one count of criminal sexual conduct
second degree as to [T.P.]?
II. Did the prosecutor violate Petitioner's due process
rights by failing to disclose exculpatory information
favorable to the defendant that would have created a
reasonable probability of a different outcome?
III. Defense trial counsel was constitutionally ineffective
for failing to object to the detective in charge of the case
improperly giving opinion testimony on Petitioner's guilt
and for failing to cross examine witness.
IV. The prosecutor violated Petitioner's state and
federal constitutional rights to due process by failing to
disclose exculpatory or impeachment evidence which could have
been favorable to his defense.
V. Petitioner was denied his state and federal constitutional
right to a fair trial and due process where the prosecution
knowingly elicited and used false testimony in order to
secure the conviction.
VI. Petitioner satisfies the cause and prejudice standard set
forth in 6.508(D) in each of the above arguments by showing
constitutionally ineffective assistance of both trial and
appellate counsel, in violation of the sixth amendment right
to effective assistance of counsel and fourteenth amendment
due process clause.
U.S.C. § 2254(d) provides:
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 ...