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Lavely v. Lindsey

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

October 9, 2019

WILLIAM EDWARD LAVELY, Petitioner,
v.
KEVIN LINDSEY, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE

         William Edward Lavely, (“Petitioner”), confined at the Cotton Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254, challenging his convictions for two counts of first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(A). For the reasons that follow, the petition for writ of habeas corpus is DENIED WITH PREJUDICE.

         I. Background

         Petitioner's granddaughters, KE and LL, testified that petitioner had sexually penetrated them when they were under 13 years of age.[1] Petitioner denied sexually assaulting the victims. The jury chose to believe the victims.

         Petitioner's conviction was affirmed. People v. Lavely, No. 312389, 2013 WL 5989671 (Mich.Ct.App. Nov. 12, 2013); lv. den. 495 Mich. 994 (2014).

         Petitioner filed a petition for writ of habeas corpus, which was held in abeyance so that petitioner could exhaust additional claims. Lavely v. Winn, No. 2:15-cv-11245, 2015 WL 2084675 (E.D. Mich. May 5, 2015).

         Petitioner's post-conviction motion was denied by the trial court. People v. Lavely, No. 11-4322-FC (Clare Cty.Cir.Ct. Aug. 2, 2016). Petitioner was denied leave to appeal. People v. Lavely, No. 334604 (Mich.Ct.App. Mar. 6, 2017); lv. den. 501 Mich. 981 (2018).

         Petitioner's case has now been reopened. Petitioner seeks habeas relief on the following ground: (1) Petitioner was denied the effective assistance of trial counsel.

         II. Standard of Review

          28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), imposes the following standard of review for habeas cases:

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; or
(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.

         A 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. at 410-11. “[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)).

         III. Discussion

         Petitioner argues he was denied the effective assistance of trial counsel.

         To prevail on his ineffective assistance of counsel claims, petitioner must show that the state court's conclusion regarding these claims was contrary to, or an unreasonable application of, Strickland v. Washington, 466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Strickland established a two-prong test for claims of ineffective assistance of counsel: the petitioner must show (1) that counsel's ...


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