King v. Winn

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

          HONORABLE LINDA V. PARKER JUDGE.

         Joel King (“Petitioner”) is presently in the custody of the Michigan Department of Corrections, pursuant to convictions for three counts of first-degree criminal sexual conduct and one count of assault and battery. Petitioner raises two claims for relief: (i) defense counsel was ineffective in failing to object to testimony from two witnesses which vouched for the credibility of the victim, and (ii) appellate counsel was ineffective for failing to raise this issue on appeal. The Court finds that Petitioner's claims do not satisfy the strict standards for habeas corpus relief. Accordingly, the petition will be denied.

         I. Background

         Petitioner was charged in two separate cases in Oakland County for the sexual assault of his step-daughter, K.D., and the assault and battery of another stepdaughter, T.S. The cases were separately filed because they were initiated by separate investigating jurisdictions. People v. King, Nos. 297667, 303329, 2011 WL 4949709, *1 (Mich. Ct. App. Oct. 18, 2011). The trial court consolidated the cases for trial. See id.

         K.D. testified that she was nine-years-old at the time of the trial. Petitioner used to be her stepfather and began living with the family when K.D. was five or six years old. K.D. testified that Petitioner began touching her private area when she was six years old. Petitioner would come visit her in her bedroom at night. He would place his hand on her private area, sometimes outside her underwear, sometimes inside. She also testified that Petitioner would sometimes put his hand inside her private area. For a long time, K.D. did not tell anyone about the touching because she was frightened that Petitioner might harm her mother. After Petitioner and her mother divorced, K.D. told her mother's boyfriend, Ryan Conrad, about the touching. K.D. then went to Care House^[1] and spoke to a woman named Sarah about what had happened.

         T.S., who was sixteen-years-old at the time of trial, testified that Petitioner had been her stepfather. In 2004, T.S.'s mother was sick and unable to care for her infant triplets. Petitioner was helping to care for them. He awakened T.S. (who was then ten or eleven) and told her to come into another room. Petitioner directed T.S. to an empty room with two metal folding chairs. She sat in one, Petitioner in the other. Petitioner asked T.S. whether she had seen Petitioner and her mother kiss. T.S. was confused by the question, but Petitioner persisted. T.S. testified that at some point she was sitting in Petitioner's lap, though she did not recall how she ended up there. Petitioner asked T.S. to show him how he and her mom kiss. She declined. Nevertheless, Petitioner kissed T.S. on the lips for about two or three minutes. When he stopped kissing her, Petitioner told T.S. to go to bed and not to tell anyone what they had done. T.S. did not tell anyone for several years. In 2009, T.S. told her father, Tom Swan, what Petitioner had done. T.S. was also interviewed by someone at Care House.

         Aimee King, the mother of K.D. and T.S., testified that she had eight children and that Petitioner was her ex-husband. King filed for divorce from Petitioner in February 2009. During their marriage, Petitioner threatened to kill her and take her children to Alaska, hide them and kill himself. King testified that in April 2009, she learned about allegations made by T.S. against Petitioner, which prompted her to take T.S. to Care House. She also learned about a statement K.D. made about Petitioner and took her to Care House as well. Ms. King also contacted Child Protective Services to investigate the allegations.

         Ashleigh Brotherson, a Child Protective Services (CPS) supervisor, testified that, in April 2009, she had been assigned to investigate allegations made by T.S. and K.D. Brotherson explained the course of an investigation conducted by CPS and identified the team members involved in handling the investigation. She explained that the 2009 investigation was substantiated, meaning “the Department feels that there was sufficient evidence to say that the allegations did happen.” (1/22/2010 Tr. at 270, ECF No. 7-6, Pg. ID 946.)

         Waterford Police Detective Gregory Drumb testified that he watched the Care House interviews of T.S. and K.D. and ultimately requested that the prosecutor criminally charge Petitioner.

         The defense called eight witnesses, several of whom testified generally about Petitioner's good relationship with his daughters. The defense recalled Aimee King. She denied telling Petitioner's family members that she was going to “destroy him” and that “if he divorces me he's gonna be in trouble.” (1/25/10 Tr. at 74, ECF No. 7-7, Pg. ID 1044.)

         Petitioner testified in his own defense. He described his marital relationship with Aimee King as tumultuous. He testified that the relationship proceeded more smoothly when he was working and able to provide her with money. When he stopped giving her money, things became more difficult. Petitioner denied inappropriately touching K.D. or T.S. He testified that he and Aimee had several conversations with their children about body safety. Petitioner admitted that, in 2004, Child Protective Services investigated the family. He had intervened in an argument between Aimee and their son, T.R. Petitioner grabbed T.R. by the shirt and inadvertently grabbed T.R.'s chest as well, leaving a bruise. He never intended to hurt T.R. and did not have to appear in court for that incident.

         Petitioner was convicted by a jury in Oakland County Circuit Court and, on March 15, 2010, sentenced to 25 to 40 years imprisonment for each of the criminal sexual conduct convictions, and 52 days, time served, for the assault conviction.

         Petitioner's convictions were affirmed on appeal. King, 2015 WL 4949709, leave denied, 492 Mich. 866 (Mich. Sept. 4, 2012).

         Petitioner returned to state court to file a motion for relief from judgment. The trial court denied the motion. (See 9/25/2014 Order, ECF No. 7-16.)^[2] Both Michigan appellate courts denied Petitioner leave to appeal the trial court's decision. People v. King, No. 325183 (Mich. Ct. App. Jan. 21, 2015); People v. King, 500 Mich. 872 (Mich. 2016).

         Petitioner then filed the pending petition for a writ of habeas corpus through counsel. He asserts the following grounds for relief:

I. Petitioner was denied his right to a fair trial and to effective assistance of counsel as guaranteed by both the Michigan and the United States Constitutions when his trial counsel failed to object to clearly inadmissible and highly prejudicial testimony by the officer in charge and the protective services worker investigating the case that vouched for the credibility of the complaining witness and in essence told the jury that they believed Petitioner was guilty of criminal sexual conduct in the first degree.

II. Petitioner was denied effective assistance of appellate counsel and therefore has demonstrated good cause for not raising the issue on direct appeal.

(ECF No. 1, Pg. ID 21, 25.)

         II. Standard

         Title 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214, 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, 405-406 (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 411.

         The AEDPA “imposes a highly deferential standard for evaluating state-court rulings, ” and “demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773 (2010) (internal citations omitted). 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), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The Supreme Court has emphasized “that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. at 102. Pursuant to section 2254(d), “a habeas court must determine what arguments or theories supported or . . . could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision” of the Supreme Court. Id. A “readiness to attribute error [to a state court] is inconsistent with the presumption that state courts know and follow the law.” Woodford v. Viscotti, 537 U.S. 19, 24 (2002).

         A state court's factual determinations are presumed correct on federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner may rebut this presumption of correctness only with clear and convincing evidence. Id. Moreover, for claims that were adjudicated on the merits in state court, habeas review is “limited to the record that was before the state court.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         III. Discussion

         A. Ineffective Assistance of Trial Counsel Claim

         Petitioner's first claim for relief concerns portions of the testimony of two witnesses - CPS investigator Ashleigh Brotherson and Detective Gregory Drumb. Petitioner argues that both witnesses improperly vouched for K.D.'s testimony, and that defense counsel's failure to object to this ...