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McQueen v. McCullick

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

September 16, 2019

MARK MCQUEEN, Plaintiff,
v.
MARK MCCULLICK, Defendant.

          OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE

         In 2011, Mark McQueen was convicted of first-degree criminal sexual conduct in a state court. As this was McQueen's fourth felony, the state court sentenced him to a term of 25 to 40 years' imprisonment. McQueen now seeks a writ of habeas corpus from this federal court pursuant to 28 U.S.C. § 2254. McQueen's petition raises 16 claims (several of which are comprised of several more claims).

         The Court will deny the petition. McQueen's first five claims were largely adjudicated “on the merits” by the Michigan Court of Appeals and that court's decision was largely not based on an unreasonable application of U.S. Supreme Court precedent, not based on unreasonable factual determinations, and not contrary to Supreme Court precedent, see 28 U.S.C. § 2254(d); and to the extent certain claims were not addressed or were addressed unreasonably, those claims lack merit on de novo review. McQueen's sixth through ninth claims for a writ of habeas corpus are debatably procedurally defaulted; but this Court elects to address those on the merits and finds that they do not warrant a writ of habeas corpus on de novo review. Finally, the Court finds that there is no debate that claims 10 through 16 are procedurally defaulted and McQueen has not excused the default.

         I.

         A.

         The charges against McQueen stemmed from allegations that in 2009 he sexually penetrated his then 11-year-old daughter, AM. McQueen's defense was that the allegations were fabricated as part of a child-custody dispute.

         AM, 12 years old at the time, testified at McQueen's trial. ECF No. 8, PageID.566. She stated that in 2009, she and her brother, DM, stayed at McQueen's small, one-bedroom apartment on or around Thanksgiving. ECF No. 8, PageID.573. She recalled that AM and her brother slept in the living room. ECF No. 8, PageID.575. AM testified that during the visit, McQueen called her into his room and told her that he was lonely. ECF No. 8, PageID.575. DM was asleep at the time, and McQueen's girlfriend was in the kitchen. ECF No. 8, PageID.576. AM went into the bedroom and fell asleep on McQueen's bed. ECF No. 8, PageID.576. AM woke up to find McQueen touching her private area, the part she used to pee. ECF No. 8, PageID.577. McQueen told her that he was touching her because his father had touched him in the same way. ECF No. 8, PageID.578. AM felt McQueen's fingernail inside of her. Id. McQueen threatened to kill her if she would not lay in bed with him. ECF No. 8, PageID.579. AM testified that McQueen touched her in a similar way on two other occasions, but she never told anyone. ECF No. 8, PageID.629. AM further testified that a couple of weeks after Thanksgiving, she told her cousin Kayla what McQueen had done; then, after Kayla told her own mother, AM told her own mother, Nioka Ellis. ECF No. 8, PageID.580.

         AM also recalled a recorded phone conversation with her father. Sometime after the incident, AM called McQueen on the phone to confront him about how he touched her; Ellis and a detective sat nearby listening. ECF No. 8, PageID.584. AM told the jury that Ellis and the detective told her what to say, but what they told her was truthful. ECF No. 8, PageID.585. McQueen denied any inappropriate touching several times during the call. But at one point, McQueen asked AM to forgive him and said that “everybody fucks up.” ECF No. 8, PageID.588, 807. A recording of the phone call was played for the jury at trial. See ECF No. 8, PageID.807.

         On December 17, 2009, Ellis took AM to the hospital. ECF No. 8, PageID.645-46. At the hospital AM saw a nurse, Laraine Moody.

         Moody testified at McQueen's trial. Moody told the jury that AM had told her that over Thanksgiving, McQueen had inserted his finger into her vagina. ECF No. 8, PageID.714. According to Moody, AM had told McQueen to stop and that it hurt. ECF No. 8, PageID.715. Moody noted notches in AM's hymen, which was unusual. ECF No. 8, PageID.716, 718. Moody told the jury, “Generally [the notches indicate], direct trauma to the hymen, penis, finger.” ECF No. 8, PageID.718. But on cross-examination, Moody admitted something besides a finger could have caused the notches. ECF No. 8, PageID.723-724. There was no way to determine when the injury had occurred. Id.

         On December 30, 2009, Ellis took AM to talk to the police. ECF No. 8, PageID.731.

         In January 2009, Margo Moltmaker from Care House interviewed AM. ECF No. 8, PageID.734.

         Moltmaker also testified at McQueen's trial. She explained that during the interview, alternative hypotheses were used to determine whether AM was in fact molested and if so, whether the molestor was McQueen. ECF No. 8, PageID.681-682. According to Moltmaker, AM was able to tell her the where, when, what, who, and why of the incident. ECF No. 8, PageID.683-684. Moltmaker also told the jury that during the interview, AM recalled McQueen saying that he touched her because he had been touched himself. ECF No. 8, PageID.684.

         On cross-examination, counsel brought out that Moltmaker's notes indicated that after AM had made disclosures to Kayla (her cousin) and her mother, AM nevertheless went to McQueen's house for Christmas. ECF No. 8, PageID.693. Moltmaker's notes also indicated that AM said she was penetrated twice by McQueen on consecutive days. Id. Motlmaker indicated that these incidents occurred around Christmas, although on redirect, Moltmaker indicated that AM said the touchings occurred during Thanksgiving. ECF No. 8, PageID.694, 700.

         Robert Wroblewski testified that he worked both as a detective and a firefighter for the City of Centerline, and he was the officer in charge of the case. ECF No. 8, PageID.730. After AM came into the station with her mother and another woman to report the incident, Wroblweski chose to send them to Care House to make a statement so that AM was not subjected to multiple interviews. ECF No. 8, PageID.733-734. Wroblewski attended the Care House interview. Id. Wroblewski also arranged for the recorded call from AM to McQueen. ECF No. 8, PageID.736- 737. Wroblewski admitted that he never spoke with either of the other people in the apartment at the time of the incident-McQueen's girlfriend or AM's brother. ECF No. 8-12, PageID.747. Wroblewski decided he did not need to speak to AM's brother because AM told him that he was asleep at the time of the incident. ECF No. 8, PageID.753. He decided not to interview McQueen's girlfriend, Tawanna Patterson, because he thought her location in the apartment did not allow her to see or hear anything. Id.

         Patterson testified that she and McQueen picked up the kids the day before Thanksgiving. ECF No. 8, PageID.762. Patterson recalled a conversation the Sunday after Thanksgiving between McQueen and AM's mother; the two discussed AM and AM's brother repeating the fifth grade for the third time and the conversation “got [AM's mom] a little agitated.” ECF No. 8, PageID.767. Patterson recalled the events of the holiday weekend, and she testified that McQueen was out until 3:00 a.m. on Saturday. ECF No. 8, PageID.766. Patterson recalled taking the children home to their mother's at 8:00 p.m. on Sunday. ECF No. 8, PageID.766-767. Patterson said that she was with the children the entire time during their stay. ECF No. 8, PageID.768. She said that the apartment was only 565 square feet, and she could see the entire apartment from the kitchen. ECF No. 8, PageID.769. Patterson never saw AM go into the bedroom with McQueen with the bedroom door shut, and she never saw them in bed together at any time during the weekend. Id.

         Following arguments and instructions, the jury convicted McQueen of first-degree criminal sexual conduct. The court sentenced McQueen to 25 to 40 years' imprisonment.

         B.

         McQueen appealed.

         McQueen's appellate counsel asserted that trial counsel was constitutionally ineffective when he failed to object to the forensic interviewer's recounting to the jury the statements that AM had made during the interview. ECF No. 8, PageID.1046.

         On appeal, McQueen also filed two supplemental pro se briefs raising four additional claims: (1) that his Fifth, Sixth and Fourteenth Amendment rights were violated because he did not voluntarily and intelligently waive his right to testify, ECF No. 8, PageID.1073, (2) that his trial counsel was constitutionally ineffective for never discussing his case with him (and appellate counsel was constitutionally ineffective for not raising this claim), ECF No. 8, PageID.1076, (3) that his trial counsel's errors rendered his trial fundamentally unfair and that his trial counsel was ineffective in seven ways, ECF No. 8, PageID.1080, PageID.1082-83, and (4) that his trial counsel was constitutionally ineffective for not being prepared to defend (the preliminary exam, apparently) and for failing to dismiss the charges on the basis that McQueen's preliminary exam was beyond the 14-day rule, ECF No. 8, PageID.1101.

         The Michigan Court of Appeals considered the arguments McQueen himself raised and affirmed McQueen's conviction. People v. McQueen, 2013 WL 3814349 (Mich. Ct. App. July 23, 2013).

         McQueen then filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims. The Michigan Supreme Court denied leave. People v. McQueen, 840 N.W.2d 350 (Mich. 2013).

         C.

         Having completed his direct appeals, McQueen returned to the state trial court and filed a pro se motion for relief from judgment. He raised the following four claims: (1) that constitutionally effective trial counsel would have shown the charge to have been fabricated thus precluding the prosecution from proving guilt with sufficient evidence and that he is factually innocent; (2) that trial counsel's performance was deficient and prejudicial; (3) that appellate counsel was ineffective in pursuing only one weak claim while ignoring stronger claims; and (4) that he has shown both good cause and actual prejudice.

         On March 16, 2015, the trial court denied McQueen's motion for relief from judgment.

         Apparently, McQueen got notice that his motion had been denied before receiving a copy of the trial court's order denying it. (Perhaps McQueen saw the docket. See ECF No. 1, PageID.161.) This prompted McQueen to file two motions: one for reconsideration and one to amend or supplement his motion for relief from judgment. See ECF Nos. 8-17, 8-18. McQueen presented seven new grounds for post-conviction relief.

         The state trial court denied both motions in a single order. ECF No. 8-19. The court denied the motion for reconsideration because it believed that the seven claims could have been presented in the initial motion for relief from judgment. ECF No. 1, PageID.161. In the alternative, the court found that the seven claims lacked merit. ECF No. 1, PageID.162-164. As for McQueen's motion to amend-or-supplement, the court treated it as a second motion for relief from judgment. ECF No. 1, PageID.164. But under Michigan Court Rule 6.502(G), a criminal defendant may file only one motion for relief from judgment absent showing a retroactive change in law or newly discovered evidence. Neither of these conditions were satisfied, the trial court found, and so it denied the motion to amend-or-supplement. ECF No. 1, PageID.165.

         McQueen sought leave to appeal. The Michigan Court of Appeals denied leave: “The defendant alleges grounds for relief that could have been raised previously and he has failed to establish both good cause for failing to previously raise the issues and actual prejudice from the irregularities alleged, and has not established that good cause should be waived. MCR 6.508(D)(3)(a) and (b).” ECF No. 1, PageID.153.

         McQueen filed an application for leave to appeal in the Michigan Supreme Court, but it was also denied under Michigan Court Rule 6.508(D). People v. McQueen, 884 N.W.2d 288 (Mich. 2016).

         McQueen then filed the petition for habeas corpus pending before this Court. It raises 16 claims, largely reproducing the claims he raised on direct appeal, in his motion for relief from judgment, and in his motion to amend-or-supplement his motion for relief from judgment.

         II.

         The analysis of McQueen's petition for a writ of habeas corpus is divided into three parts. Part II.A. addresses claims one through five, i.e., the claims that McQueen presented on direct appeal. Part II.B. addresses claims six through nine, i.e., the claims that McQueen presented in his motion for relief from judgment. And Part II.C. addresses claims 10 through 16, i.e., the claims that McQueen presented in his motions for reconsideration and to amend-or-supplement the motion for relief from judgment.

         A.

         1.

         McQueen's first claim asserts that his trial counsel was ineffective for failing to object to the testimony of Margo Moltmaker, the forensic interviewer from Care House, regarding statements made by AM during their interview. See ECF No. 1, PageID.61-67.

         After reciting the legal standard for ineffective-assistance set out in Strickland v. Washington, 466 U.S. 668 (1984), the Michigan Court of Appeals rejected this claim as follows:

Defendant first claims that, on direct and redirect examination, his attorney failed to object when Margo Moltmaker, a forensic interviewer at the Macomb County Child Advocacy Center (Care House), testified about information that the 11-year-old victim provided during her forensic interview. In particular, defendant claims that counsel should have objected to Moltmaker's testimony that the victim provided the same information about the alleged assault more than once and promised to be truthful.
During direct examination, Moltmaker answered, in the affirmative, several closed-ended questions, including whether the victim was “able to open up and talk to you that day, ” whether she was “able to tell you where on her body she was touched, ” “when it happened approximately, ” “who touched her, ” and whether she “told you who, what, where, when, and why.” Asked by the prosecutor whether defendant had ever told the victim why he was touching her, Moltmaker responded, “He indicated [to the victim] that he was touching her because he had been touched himself.” While this answer constituted hearsay, and was not admissible under any exception, defendant cannot establish ineffective assistance of counsel. The content of the statement duplicated the victim's own testimony, which the jury had already heard, and counsel may have strategically declined to object, knowing that even a sustained objection would have had no practical effect, as the jurors would have been admonished not to consider the statement from Moltmaker but would not have received a similar instruction with respect to the identical testimony from the victim. Appellate courts will not second-guess questions of trial strategy. Odom, 276 Mich.App. at 415. Relatedly, defendant cannot show that he was prejudiced by any error because the jury had already heard the victim's own testimony concerning what defendant had told her, which was not hearsay. MRE 801(d)(2).
Moltmaker also testified that she explained to the victim that one of the “ground rules” of the interview was that subjects “promise that they'll only talk to [her] about things that are true, ” and the victim made that promise. To the extent this statement was offered to prove its truth, it was admissible as evidence of the victim's then-existing state of mind. MRE 803(3); see also People v. Coy, 258 Mich.App. 1, 13-14 (2003). The victim's verbal promise to Moltmaker was evidence of her intent to tell the truth during the interview. As noted, counsel is not required to make futile objections. Unger, 278 Mich.App. at 256. Moreover, even assuming arguendo that the statement was not admissible, counsel likely recognized that objecting would have appeared unduly combative. We cannot conclude that counsel's failure to object fell below an objective standard of reasonableness under the prevailing professional norms. See Uphaus, 278 Mich.App. at 185.

People v. McQueen, No. 306317, 2013 WL 3814349, at *1-2 (Mich. Ct. App. July 23, 2013).

         That was an adjudication “on the merits” as that phrase is used in 28 U.S.C. § 2254(d). And that means that McQueen can only obtain habeas corpus relief on his first claim if the Michigan Court of Appeals' adjudication of the claim “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 “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).

         Here, the “clearly established Federal law” is Strickland v. Washington, 466 U.S. 668 (1984). And under Strickland, there is a Sixth Amendment violation only if “counsel's representation fell below an objective standard of reasonableness, ” id. at 688, and “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different, ” id. at 694.

         This Court cannot say that the Michigan Court of Appeals' finding that trial counsel was not constitutionally ineffective in addressing Moltmaker's hearsay testimony involved an unreasonable application of Strickland. Johnson v. Genovese, 924 F.3d 929, 933 (6th Cir. 2019) (“The standard for § 2254(d) relief and the test for ineffective assistance under [Strickland] are each highly deferential. And when the two apply in tandem, review is doubly so.” (internal citations and alterations omitted)). Counsel's decision not to object to Moltmaker's testimony could be viewed as part of a defense strategy of showing that AM's multiple statements about what happened were inconsistent and therefore not believable. On cross-examination, counsel elicited testimony that Moltmaker's notes indicated inconsistencies of what McQueen did to AM and when. See ECF No. 8, PageID.693-694. When the inconsistencies are taken together with Moltmaker's testimony that the victim promised to tell the truth, it strengthened defense counsel's argument that AM's accusations were not credible.

         Nor is this a post-hoc justification for counsel's failure to object. The strategy first appears in defense counsel's opening statement:

She's already told a lot of people a lot of different things. She's told some stories to some people, other stories to other people. I don't know what she is going to tell you. I don't know all the things that she's going to tell you because I haven't spoken to her myself. But, I have spoken to other people who have spoken to her, and I know she is going to tell you lot of different things.
I don't know whether she is going to tell you that her father had no clothes, because she's told some people he had no clothes, and she's told other people he had clothes. So, I don't know what she is going to tell you. . . .

ECF No. 8, PageID.556-557.

         The strategy appears again in defense counsel's closing argument:

We then go to the Care House lady and after proper coaching we tell the Care House lady the story. There are discrepancies. Generally, they don't mean too much, whether the robber was wearing a red shirt or an orange shirt. Whether the robber was wearing a white shirt or a light blue shirt. It doesn't mean that you didn't get robbed. But, when it didn't happen in the first place then it means that you didn't get robbed. So, we have one story about dad had his pants on only, he had no shirt on. We have another story, dad had a shirt on, no pants on.

ECF No. 8, PageID.534.

         Counsel's decision not to object to Moltmaker's testimony regarding AM's prior statement was arguably part of a reasonable trial strategy of using inconsistencies in AM's prior statement- one in which she promised to be truthful-to attack her credibility. So the state appellate court did not unreasonably apply Strickland. Thus, McQueen's first claim for a writ of habeas corpus cannot clear § 2254(d).

         McQueen's second claim for habeas corpus relief is that his counsel was not prepared to, and did not file, a motion to dismiss based on his preliminary exam being scheduled more than 14 days after arraignment. ECF No. 1, PageID.70. In this claim, McQueen also argues that his counsel was not “prepared to defend” the preliminary examination. See ECF No. 1, PageID.68. Indeed, McQueen says he met his counsel for the first time on the date of the exam and thus implies that the two never collaborated on any preliminary-examination defense. ECF No. 1, PageID.72.

         The Court begins with McQueen's claim based on the 14-day rule. McQueen says that he was arraigned on February 16, 2010 and a preliminary exam was not scheduled until March 24, 2010-34 days later. ECF No. 1, PageID.69-70. And McQueen says that when he saw his counsel on March 24, 2010, counsel was not prepared to file a motion to dismiss. McQueen says a new preliminary exam date was set for April 15, 2010. By that date, McQueen had been appointed different counsel. But, McQueen says, when April 15, 2010 came around, his new counsel also did not file a motion to dismiss. ECF No. 1, PageID.70. McQueen thus claims that both counsel were constitutionally ineffective.

         The Michigan Court of Appeals addressed this claim as follows:

Defendant argues that trial counsel should have objected to the district court's violation of MCL 766.4, which generally requires the court to hold a preliminary examination no later than 14 days after the district court arraignment. This claim lacks merit because defendant waived arraignment in the district court on April 15, 2010, and the preliminary examination was held on the same day, resulting in defendant being bound over to the circuit court, where he was arraigned on April 26, 2010. Because no procedural rule was violated, there was nothing for defense counsel to object to.

People v. McQueen, No. 306317, 2013 WL 3814349, at *4 (Mich. Ct. App. July 23, 2013).

         Although the record reflects that McQueen was arraigned on April 15, as the Michigan Court of Appeals stated, it also appears that there was some type of 14-day issue, as McQueen stated. See ECF No. 8, PageID.361-63. It appears that McQueen was initially arraigned on February 16, but the trial court was not able to schedule McQueen's preliminary examination until March 24. See ECF No. 8, PageID.361-63. What McQueen has not shown, however, is that he did not waive the 14-day rule in exchange for release on bond. The prosecutor indicated that because of the 14-day problem, McQueen was released on a $10, 000 bond with a GPS tether. See ECF No. 8, PageID.361. This suggests that McQueen may have agreed to extend the date for arraignment in exchange for release from prison. After all, even if the claims had been dismissed, the prosecutor could have recharged McQueen. And that also shows why any failure by counsel to move to dismiss under the 14-day rule did not prejudice McQueen. True, McQueen says that the prosecutor ...


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