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
Denise Page Hood Chief United States District Judge
Kristi Dicken, (“Petitioner”), confined at the
Huron Valley Women's Correctional Facility in Ypsilanti,
Michigan, filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 through her attorney F.
Randall Karfonta. Petitioner challenges her conviction for
conducting a criminal enterprise, Mich. Comp. Laws §
750.159i(1); embezzlement from a vulnerable adult, $50, 000
or more but less than $100, 000, Mich. Comp. Laws §
750.174a(6)(a); and seven counts of obtaining money by false
pretenses, $1, 000 or more but less than $20, 000, Mich.
Comp. Laws § 750.218(4)(a). Petitioner was sentenced to
concurrent prison terms of 140 months to 20 years for the
criminal enterprise conviction, 23 months to 5 years for each
false pretenses conviction, and 71 months to 15 years for the
embezzlement conviction. For the reasons that follow, the
petition for writ of habeas corpus is DENIED WITH
was convicted following a jury trial in the Midland County
Circuit Court. This Court recites verbatim the relevant facts
regarding petitioner's conviction from the Michigan Court
of Appeals' opinion affirming her conviction, since they
are presumed correct on habeas review. See Wagner v.
Smith, 581 F.3d 410, 413 (6th Cir. 2009):
This case resulted from allegations that defendant, a
registered representative or broker who worked for the
Diversified Group, placed the funds of many clients into a
risky limited partnership investment in which they lost
substantial portions of their principal. The prosecutor
asserted that defendant did so in order to obtain commissions
and that, to convince her clients to enter into these risky
investments, she misled them as to the risk to their
principal and the liquidity of the investment. In addition,
several of defendant's clients testified that their
signatures on various documents had been forged.
People v. Dicken, No. 322998, 2016 WL 146031, at * 1
(Mich. Ct. App. Jan. 12, 2016).
Michigan Court of Appeals affirmed petitioner's
convictions and sentences for her embezzlement and
false-pretenses convictions, but remanded to the trial court
for further proceedings regarding the reasonableness of the
above the guidelines sentence for the criminal-enterprise
filed an application for leave to appeal in the Michigan
Supreme Court. The Michigan Supreme Court remanded the case
back to the Court of Appeals to consider the proportionality
of petitioner's criminal-enterprise sentence, but
otherwise denied the application. People v. Dicken,
501 Mich. 904, 902 N.W.2d 604 (2017).
remand, the Michigan Court of Appeals affirmed
petitioner's sentence for criminal enterprise,
determining that it was proportionate based on the trial
court's reasons for the departure from the sentencing
guidelines. People v. Dicken, No. 322998, 2018 WL
632986 (Mich. Ct. App. Jan. 30, 2018); lv. den. 502
Mich. 904, 913 N.W.2d 325 (2018).
seeks a writ of habeas corpus on the following grounds:
I. In a fraud case where the issue was Defendant's
disclosure to clients and unlawful and illegal intent,
Defendant was denied fundamentally fair discovery of the
investigation of the business entities in the case including
a clearly intentionally and important Brady v
II. Improper expert opinion as to evidence that “is not
a defense” and opinion as to the meaning of federal
statu[t]es and regulations is plain error[.]
III. Recordings of Shawn Dicken's testimony before the
FINRA state investigative agency are required evidence
showing her lack of intent to defraud.
IV. Where the charge is embezzlement from a vulnerable adult,
prosecutorial arguments and evidence that the power of
attorney in the case was the equivalent of legal incapacity
denied Defendant a fair trial and due process of law.
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.
court's decision 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.
Supreme Court explained that “[A] federal court's
collateral review of a state-court decision must be
consistent with the respect due state courts in our federal
system.” Miller-El v. Cockrell, 537 U.S. 322,
340 (2003). The “AEDPA thus 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)((quoting Lindh v. Murphy,
521 U.S. 320, 333, n. 7 (1997); Woodford v.
Viscotti, 537 U.S. 19, 24 (2002)(per curiam)).
“[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,
664 (2004)). To obtain habeas relief in federal court, a
state prisoner is required to show that the state court's
rejection of his or her claim “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S.
at 103. A habeas petitioner should be denied relief as long
as it is within the “realm of possibility” that
fairminded jurists could find the state court decision to be
reasonable. See Woods v. Etherton, 136 S.Ct. 1149,
Michigan Court of Appeals reviewed and rejected a portion of
petitioner's first and second claims and her fourth claim
under a plain error standard on the ground that petitioner
failed to preserve these claims as a constitutional issue at
the trial court level. The AEDPA deference applies to any
underlying plain-error analysis of a procedurally defaulted
claim. See Stewart v. Trierweiler, 867 F.3d 633,
638(6th Cir. 2017).
Claim # 1. The discovery claim.
first argues that she is entitled to habeas relief because
the prosecutor violated M.C.R. 6.201(B) and Brady v.
Maryland, 373 U.S. 83 (1963) by failing to turn over to
the defense materials that the prosecutor had in its
possession regarding other Diversified Group employees,
material obtained pursuant to a search warrant executed at a
credit union for Triton Commercial Lending, a separate
company owned by petitioner, and evidence regarding the
operation of Diversified Group by a receiver.
well-settled that there is no general constitutional right to
discovery in a criminal case. See Weatherford v.
Bursey, 429 U.S. 545, 559 (1977)(denying due process
claim of a defendant who was convicted with aid of surprise
testimony from an accomplice who was an undercover agent);
United States v. Presser, 844 F.2d 1275, 1281 (6th
Cir.1988)(citing Weatherford). A claim that a
prosecutor violated state discovery rules is not cognizable
in federal habeas review, because it is not a constitutional
violation. See Lorraine v. Coyle, 291 F.3d 416, 441
(6th Cir. 2002). Petitioner would not be entitled to habeas
relief because the prosecutor violated M.C.R. 6.201 or some
other Michigan rules regarding discovery.
true that suppression by the prosecution of evidence
favorable to the defendant upon request violates due process,
where the evidence is material to either guilt or punishment
of the defendant. Brady v. Maryland, 373 U.S. 83, 87
(1963). Whether the prosecution acted in good or bad faith is
not considered in the determination. Evidence is material
only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would have been different. A “reasonable
probability is a probability sufficient to undermine
confidence in the outcome.” United States v.
Bagley,473 U.S. 667, 683 (1985). In Strickler v.
Greene,527 U.S. 263, 281-82 (1999), the Supreme Court
articulated three components or essential elements of a
Brady claim: (1) the evidence at issue must be
favorable to the accused, either because it is exculpatory,
or because it is impeaching; (2) the evidence must have ...