United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR HABEAS
J. MICHELSON UNITED STATES DISTRICT JUDGE
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).
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.
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.
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.
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,
December 17, 2009, Ellis took AM to the hospital. ECF No. 8,
PageID.645-46. At the hospital AM saw a nurse, Laraine 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.
December 30, 2009, Ellis took AM to talk to the police. ECF
No. 8, PageID.731.
January 2009, Margo Moltmaker from Care House interviewed AM.
ECF No. 8, PageID.734.
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.
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,
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
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.
arguments and instructions, the jury convicted McQueen of
first-degree criminal sexual conduct. The court sentenced
McQueen to 25 to 40 years' imprisonment.
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,
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.
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).
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).
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.
March 16, 2015, the trial court denied McQueen's motion
for relief from judgment.
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
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.
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.
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
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.
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.
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.
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
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).
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).
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.
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.
this a post-hoc justification for counsel's failure to
object. The strategy first appears in defense counsel's
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.
strategy appears again in defense counsel's closing
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.
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 §
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.
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
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
People v. McQueen, No. 306317, 2013 WL 3814349, at
*4 (Mich. Ct. App. July 23, 2013).
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