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Pollard v. Macauley

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

December 19, 2019

AUTREZ LAMAR POLLARD, Petitioner,
v.
MATT MACAULEY, Respondent.

          OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS [1], DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          Stephen J. Murphy, III United States District Judge.

         Petitioner Autrez Lamar Pollard, a Michigan Department of Corrections inmate, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. ECF 1. Petitioner challenges his convictions for two counts of second-degree criminal sexual conduct in violation of Mich. Comp. Laws § 750.520c. ECF 1, PgID 2. Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Id. In his petition, filed through counsel, Petitioner raises claims concerning the trial court's denial of his request to refer to the lack of DNA evidence, his related adjournment request, and the validity of his sentence. See ECF 1. For the reasons set forth below, the Court will deny the habeas petition. The Court will also deny Petitioner a certificate of appealability and leave to appeal in forma pauperis

         BACKGROUND

         The Court will rely on the Michigan Court of Appeals' recitation of the facts, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009). Petitioner was found guilty of "two counts of second-degree criminal sexual conduct." People v. Pollard, No. 336700, 2018 WL 3129688 at *1 (Mich. Ct. App. June 26, 2018). On the day of the incident Petitioner and his six-year-old biological daughter went to a relative's home. Id. During the evening, Petitioner and his daughter slept on a floor with several other adults and children in the same room. Id. During the night, Petitioner "ordered his daughter to remove her shorts and underwear and get on top of him." Id. Petitioner's daughter "testified that she felt his 'private part' touching hers, and that he also touched her 'butt' and 'private part' with his hands, and then kissed her on the mouth." Id.

         Another adult in the room "heard the sounds of intimate kissing," took a phone "and, using it as a flashlight, saw [Petitioner] lying on his back with his daughter face down on top of him." Id. She also saw "[Petitioner's] scrotum and his daughter's panties on the floor." Id. The witness then woke the homeowners, who removed Petitioner's daughter and called the police. Id. Petitioner's daughter was examined at the hospital and swabbed for DNA evidence. Id.

         At the final pretrial conference the prosecutor told the trial court that the DNA evidence was not yet available but that preliminary DNA evidence-which would indicate if male DNA was found-might become available before trial. Id. Petitioner requested to adjourn the trial until the DNA was available, but the trial court denied Petitioner's request, and "ordered that neither side was to mention DNA evidence" Id. The trial court "clarified that [Petitioner] could argue that there was no physical evidence tying him to the alleged crime." Id. Petitioner was found guilty, and sentenced to 30 to 45 years in prison, "which was a substantial upward departure from the minimum guidelines range of 36 to 142 months." Id.

         Petitioner appealed his conviction to the Michigan Court of Appeals and argued "that the trial court's refusal to allow any mention of the lack of DNA evidence violated his constitutional rights to a defense and a fair trial" and that "he [was] entitled to resentencing because his sentence . . . was unreasonable." Id. The appellate court denied relief and affirmed Petitioner's convictions. Id. at *5. Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. People v. Pollard, 503 Mich. 915 (2018). He then, through counsel, filed his federal habeas petition. ECF 1.

         LEGAL STANDARD

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") circumscribes the legal standard that federal courts apply when considering an application for a writ of habeas corpus. See Wiggins v. Smith, 539 U.S. 510, 520 (2003). Under the statute, a federal court may not grant habeas relief to a state prisoner with respect to any claim that has been "adjudicated on the merits in [s]tate court proceedings" unless the state-court adjudication "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [f]ederal law, as determined by the Supreme Court of the United States" or (2) made an unreasonable factual determination "in light of the evidence presented." 28 U.S.C. § 2254(d).

         A state court's decision is contrary to clearly established federal law if it "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, 413 (2000). A decision is contrary to federal law where the "state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases." Id. at 405.

         A state court decision unreasonably applies federal law "if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts." Slaughter v. Parker, 450 F.3d 224, 232 (6th Cir. 2006) (citing Williams, 529 U.S. at 407-08). "'[A]n unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Williams, 529 U.S. at 410) (emphasis in original). Therefore, 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." Id. (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

         The state courts' factual determinations are presumed correct on federal habeas review. 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Habeas review is also "limited to the record that was before the state court." Cullen v. Pinholster, 563 U.S. 170, 181 (2011).

         DISCUSSION

         Petitioner raises two claims in his habeas petition. The Court ...


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