Jordan v. Haas

          OPINION AND ORDER DENYING PETITION FOR HABEAS CORPUS, DENYING CERTIFICATE OF APPEALABILITY, AND GRANTING RIGHT TO PROCEED IN FORMA PAUPERIS ON APPEAL

          LAURIE J. MICHELSON UNITED STATES DISTRICT JUDGE.

         A state court jury convicted William Tyler Jordan of molesting his four- and five-year-old nieces. Jordan appealed without success. He now turns to federal court, petitioning for a writ of habeas corpus. As will be explained, Jordan's two claims for the writ are procedurally defaulted. But even if the claims are not defaulted, the Michigan Court of Appeals' decision did not involve an unreasonable application of clearly established federal law, was not contrary to clearly established federal law, and was not based on unreasonable fact determinations. See 28 U.S.C. § 2254(d). So either way, the Court cannot grant Jordan a writ.

         I.

         According to the Michigan Court of Appeals, “The charges against [Jordan] ar[o]se from incidents occurring in 2013 or 2014 between defendant and his two nieces, IC and AC, who were four and five years old at the time of the incidents.” People v. Jordan, No. 328738, 2016 WL 6825714, at *1 (Mich. Ct. App. Nov. 17, 2016). Jordan was 18 or 19 years old at the time. (See ECF No. 8, PageID.389.) “At trial, ” said the Michigan Court of Appeals, “both victims testified that while they were at their grandparents' home, [Jordan] on several occasions touched their genital areas with his finger, his penis, or both.” Id.

         A state court jury convicted Jordan of one count of first-degree criminal sexual conduct and three counts of second-degree criminal sexual conduct. Jordan was sentenced to concurrent terms of 25 to 30 years' imprisonment on the first-degree conviction and 10 to 15 years' imprisonment on each of the second-degree convictions.

         Jordan appealed, claiming prosecutorial misconduct. The Michigan Court of Appeals found that Jordan's attorney did not object to an allegedly improper statement during the prosecutor's initial closing argument and that while Jordan's attorney did object to a similar statement during the prosecutor's rebuttal, Jordan's attorney “failed to state a basis for his objection on the record.” Jordan, 2016 WL 6825714, at *1. As such, Jordan's claims were “unpreserved” and the Michigan Court of Appeals' review was “limited to plain error.” Id. The state appellate court then went on to find that Jordan had “failed to show any plain error affecting his substantial rights.” Id. at *2.

         Jordan also argued to the Michigan Court of Appeals that because Michigan imposes a non-discretionary, 25-year minimum sentence for first-degree criminal sexual conduct, his maturity and ability for rehabilitation was not incorporated into his sentence as the Eighth Amendment (and the Michigan Constitution's analog) require. Like Jordan's other claim, the Michigan Court of Appeals found that because Jordan “failed to make an objection at sentencing, ” the “error [was] not preserved.” Id. at *3. Then proceeding under the umbrella of plain-error review, the Michigan Court of Appeals found that under the Eighth Amendment, “‘the only type of “age” that matters is chronological age,' and [Jordan] was an adult when he committed the offenses.” Id. at *3 (quoting United States v. Marshall, 736 F.3d 492, 498 (6th Cir. 2013)).

         The Michigan Court of Appeals thus affirmed Jordan's convictions and sentences.

         Jordan sought leave to appeal from the Michigan Supreme Court. Leave was denied because the Court was “not persuaded that the questions presented should be reviewed.” People v. Jordan, 900 N.W.2d 632, 632 (Mich. 2017) (mem.).

         Jordan then filed a petition for a writ of habeas corpus with this Court. Jordan's petition raises the same two issues that he raised on direct appeal. (See ECF No. 1, PageID.11-29.)

         II.

         The Warden says that both of Jordan's claims for the writ are procedurally defaulted. The Court agrees.

         “A habeas petitioner procedurally defaults a claim if: (1) the petitioner failed to comply with a state rule; (2) the state enforced the rule against the petitioner; and (3) the rule is an ‘adequate and independent' state ground foreclosing review of a federal constitutional claim.” Bickham v. Winn, 888 F.3d 248, 251 (6th Cir. 2018).

         Here, the Michigan Supreme Court stated, “we are not persuaded that the questions presented should be reviewed”; so in deciding whether the state appellate courts relied on an adequate-and-independent state procedural rule to bar Jordan's claims, this Court will look through the Michigan Supreme Court's opinion to the last reasoned opinion, that of the Michigan Court of Appeals. See ...