United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS , DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
Stephen J. Murphy, III United States District Judge.
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
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."
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.
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
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.
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).
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.
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)).
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).
raises two claims in his habeas petition. The Court ...