United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS
CORPUS AND DENYING CERTIFICATE OF APPEALABILITY
HONORABLE LINDA V. PARKER JUDGE.
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
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.
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 and spoke to a woman named Sarah about
what had happened.
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.
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
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
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.
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.)
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
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.
convictions were affirmed on appeal. King, 2015 WL
4949709, leave denied, 492 Mich. 866 (Mich. Sept. 4,
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.) 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.
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.)
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;
(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, 405-406 (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.
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).
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).
Ineffective Assistance of Trial Counsel Claim
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