United States District Court, E.D. Michigan, Southern Division
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
CARAM STEEH UNITED STATES DISTRICT JUDGE
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
granddaughters, KE and LL, testified that petitioner had
sexually penetrated them when they were under 13 years of
Petitioner denied sexually assaulting the victims. The jury
chose to believe the victims.
conviction was affirmed. People v. Lavely, No.
312389, 2013 WL 5989671 (Mich.Ct.App. Nov. 12, 2013); lv.
den. 495 Mich. 994 (2014).
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).
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).
case has now been reopened. Petitioner seeks habeas relief on
the following ground: (1) Petitioner was denied the effective
assistance of trial counsel.
Standard of Review
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;
(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.
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,
argues he was denied the effective assistance of trial
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 ...