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Bird v. Klee

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

September 16, 2019

DENNIS PATRICK BIRD, JR., Petitioner,
v.
PAUL KLEE, Respondent.

          OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

          VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.

         Petitioner 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.

         The Court denies the petition.

         I. Background

         Petitioner 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).

         Petitioner 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.

         Petitioner 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. 860 (2014).

         Petitioner 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).

         Petitioner 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.

         Petitioner then filed this habeas corpus petition. He raises these claims:

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.

         II. Standard

         28 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 ...

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