UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRELL MANN,

Petitioner,

v.

BONITA HOFFNER,

Respondent.

 /

Case No. 2:14-cv-12828

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER DENYING

PETITION FOR WRIT OF HABEAS CORPUS [1, 15] AND DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Before the Court is Petitioner Darrell Mann's pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 challenging his convictions for three counts of third-degree

criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(b), and one count of

fourth-degree criminal sexual conduct, Mich. Comp. Laws § 750.520e(1)(b). For the

reasons set forth below, the Court will deny the petition.

BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit Court, and

the conviction was affirmed on appeal. People v. Mann, Case No. 308706, 2013 WL

2278136 (Mich. Ct. App. May 23, 2013). The Michigan Court of Appeals relied on the

following facts that the Court presumes are accurate:1

On July 19, 2011, the victim was walking toward a bus stop when defendant offered

to give her a ride. The victim got in defendant's truck and, after they negotiated a

price for oral sex, defendant drove to a parking lot. After defendant stopped the

vehicle, he grabbed the victim's neck with both hands and told her he did not have

any money, but to do what he said and he would not hurt her. After defendant forced

the victim to perform oral sex, he penetrated her with his fingers and then his penis

while she cried and asked him to stop. Eventually, defendant let the victim out of his

 1 The Court is permitted to make the presumption under 28 U.S.C. § 2254(e)(1).
truck and, after securing defendant's license plate number, she sought medical

treatment. Prior to defendant's trial and pursuant to MRE 404(b), the prosecutor

moved for the admission of evidence related to defendant's 1989 first-degree CSC

conviction and the motion was granted.

Id. at *1.

Petitioner then filed his petition, which the Court held in abeyance to permit Petitioner

to return to the state courts to present additional claims. ECF 12. Petitioner's state court

actions failed, so the Court reopened the case and allowed Petitioner to file an amended

habeas petition. ECF 16. In his original and amended petitions, Petitioner seeks habeas

relief on the following grounds: (1) Petitioner was denied a fair trial by the introduction of

prejudicial bad acts evidence, (2) Petitioner was denied the effective assistance of trial

counsel, and (3) Petitioner was denied the effective assistance of appellate counsel.

STANDARD OF REVIEW

28 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; or

(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.

A decision of a state court 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

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"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. at 411. "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 must therefore show that the state court’s rejection of his

claim "was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement." Id. at

103.

DISCUSSION

I. Other Acts Evidence

Petitioner first claims that the trial court violated his right to due process and a fair trial

by admitting "other acts" evidence involving Petitioner's 1989 sexual assault conviction

because the evidence was irrelevant, more prejudicial than probative, and violated

Michigan's Rule of Evidence 404(b). Violations of state law and procedures that do not

infringe specific federal constitutional protections are not cognizable claims under § 2254.

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Moreover, the Sixth Circuit has observed

that "the Supreme Court has never held (except perhaps within the capital sentencing

context) that a state trial court's admissions of relevant evidence, no matter how

prejudicial, amounted to a violation of due process." Blackmon v. Booker, 696 F.3d 536,

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551 (6th Cir. 2012) (emphasis omitted). Evidence of Petitioner's 1989 sexual assault

tended to show his intent to sexually assault the victim in this case, so it was relevant.

Petitioner's argument therefore fails to raise a claim on which relief can be granted.

II. Ineffective Assistance of Counsel

Petitioner next argues that he was denied the effective assistance of trial and

appellate counsel. To succeed on these claims, Petitioner must show that his counsel was

deficient and that the deficiency prejudiced his defense. Strickland v. Washington, 466

U.S. 668, 687 (1984); see also Whiting v. Burt, 395 F.3d 602, 617 (6th Cir.) (applying

Strickland standard to appellate counsel). To do so, Petitioner must overcome the strong

presumption that counsel's behavior lies within the wide range of reasonable professional

assistance. Strickland, 466 U.S. at 689. And Petitioner must show that "there is a

reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Id. at 694. Because the Court reviews the question

on habeas, "the pivotal question is whether the state court's application of the Strickland

standard was unreasonable." Harrington, 562 U.S. at 101. Petitioner did not discharge his

burden, so the Court will not grant relief.

A. Trial Counsel

Petitioner argues that trial counsel was ineffective because she failed to object to the

state court's erroneous instruction on the elements for fourth-degree criminal sexual

conduct. The Court finds that the jury instructions adequately advised the jurors that they

had to find that Defendant intentionally touched the victim's breasts and that the touching

had been done for a sexual purpose. Counsel therefore was not ineffective for failing to

object to the instructions. See Campbell v. Coyle, 260 F.3d 531, 558 (6th Cir. 2001).

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Petitioner also argues that trial counsel was ineffective for failing to impeach the victim

for her prior inconsistent statements.2 The Michigan Court of Appeals rejected the claim

because it found that counsel adequately questioned the victim. The Court has

independently reviewed the record and finds that counsel extensively impeached the

victim. See, e.g., ECF 10-7, PgID 410–23. Counsel then highlighted this impeachment

during closing argument. ECF 10-8, PgID 589–603. Accordingly, the Court finds that

counsel's performance was adequate and that Petitioner is not entitled to relief. See

Jackson v. Bradshaw, 681 F.3d 753, 764–65 (6th Cir. 2012); Krist v. Foltz, 804 F.2d 944,

948–49 (6th Cir. 1986).

Petitioner next argues he was denied the assistance of counsel during a critical stage

in the proceeding when the judge answered a note asking for a copy of the jury

instructions to be sent to the jury room. The complete denial of counsel during a critical

stage of a judicial proceeding—including the giving of a supplemental jury

instruction—mandates a presumption of prejudice. United States v. Cronic, 466 U.S. 648,

659 (1984); Rushen v. Spain, 464 U.S. 114, 119 n.4 (1983). But re-reading or giving

written instructions that have previously been given to the jury are not critical stages for

Sixth Amendment purposes. Philips v. Bradshaw, 607 F.3d 199, 223–24 (6th Cir. 2010);

Hudson v. Jones, 351 F.3d 212, 216–18 (6th Cir. 2003). Consequently, the Court does not

presume prejudice. Petitioner does not allege or show any prejudice from his counsel's

absence, so he is not entitled to relief.

 2 Petitioner did not include this claim in his amended habeas petition. Although a

habeas petitioner can withdraw a claim from a habeas petition, it is not clear that Petitioner

sought to withdraw this claim from consideration when he filed his amended petition.

Because Petitioner is proceeding pro se, the Court assumes that he still seeks to pursue

habeas relief on this claim. 

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Petitioner finally contends that trial counsel was ineffective for failing to object when

the judge gave the jurors a copy of a medical report that had not been admitted into

evidence. Petitioner made the same claim in a post-conviction motion that was denied by

a state court, which found that the jury had not been given the medical records. ECF 18-3.

Although the issue of ineffective assistance of counsel presents a mixed question of law

and fact, any underlying facts found by the state courts are presumed correct until they are

rebutted by clear and convincing evidence. Bailey v. Mitchell, 271 F.3d 652, 656 (6th Cir.

2001); West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996). Petitioner has failed to rebut the

factual finding that the contested evidence was not given to the jury, so there was no

reason for trial counsel to object. See U.S. v. Johnson, 9 F. App'x. 373, 374 (6th Cir. 2001)

(no error when counsel fails to raise a meritless issue). Thus, there is no ground for relief.

B. Appellate Counsel

Petitioner argues that appellate counsel was ineffective for failing to raise the third

and fourth ineffective assistance of trial counsel claims on Petitioner's appeal of right.

"[A]ppellate counsel cannot be found to be ineffective for 'failure to raise an issue that

lacks merit.'" Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v.

Mitchell, 264 F.3d 663, 676 (6th Cir. 2001)). The Court has already determined that

Petitioner's ineffective assistance of trial counsel claims are without merit, so appellate

counsel was not ineffective in handling the direct appeal. Petitioner is not entitled to relief.

III. Certificate of Appealability

Petitioner cannot appeal the Court's decision unless he is issued a Certificate of

Appealability (a "COA"). Fed. R. App. P. 22(b). A COA may be issued "only if the applicant

has made a substantial showing of the denial of a constitutional right." 28 U.S.C.

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§ 2253(c)(2). The substantial showing threshold is satisfied when a petitioner

demonstrates "that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quotation marks omitted). "[W]hen a habeas applicant seeks

permission to initiate appellate review of the dismissal of his petition," a federal court

should "limit its examination to a threshold inquiry into the underlying merit of his claims."

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). After conducting the required inquiry, the

Court finds that Petitioner has not made a substantial showing of the denial of a

constitutional right. The Court will therefore deny Petitioner a COA. The Court also will

deny Petitioner leave to appeal in forma pauperis because an appeal would be frivolous.

See Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich 1999).

ORDER

WHEREFORE, it is hereby ORDERED that the petition for writ of habeas corpus [1,

15] is DENIED WITH PREJUDICE. 

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that Petitioner is denied leave to appeal in forma

pauperis.

The order is final and closes the case.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

Dated: October 10, 2017 United States District Judge

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on October 10, 2017, by electronic and/or ordinary mail.

s/David P. Parker 

Case Manager

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