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