UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

EDWIN CORREA,

Petitioner,

v. Case No. 2:14-CV-12592

HON. R. ALLAN EDGAR

DUNCAN MACLAREN,

Respondent.

________________________________/

OPINION AND ORDER

Petitioner filed this § 2254 petition for writ of habeas corpus challenging the

validity of his state court conviction based on violations of his Fifth, Sixth, and Fourteenth

Amendment rights. On November 25, 2008, Petitioner was convicted by a jury of first degree

criminal sexual conduct (MICH. COMP. LAWS § 750.520(b)(1)(B)). Petitioner was then sentenced,

as a second habitual offender, to a prison term of twenty-five to fifty years. Petitioner remains in

the custody of the Michigan Department of Corrections. 

After his conviction, Petitioner filed an application for leave to appeal in the

Michigan Court of Appeals. ECF No. 14-3 at 21-52, 97-115. The Court of Appeals denied his

application and affirmed his convictions on May 18, 2010. See People v. Correa, No. 290271,

2010 WL 1979297, at *1 (Mich. Ct. App. May 18, 2010); see also ECF No. 14-13 at 1-16. 

Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. ECF No.

14-14 at 3-50. The Michigan Supreme Court denied Petitioner’s application on December 16,

2010. People v. Correa, 791 N.W.2d 285 (Mich. 2010); see also ECF No. 14-14 at 1. On

December 15, 2011, Petitioner returned to the trial court and filed a motion for relief from

judgment, which was denied on September 12, 2012. ECF No. 14-8 at 1-43; ECF No. 14-9 at 1-

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5. Petitioner then filed an application for leave to appeal to the Michigan Court of appeals, which

was also denied on October 2, 2013. ECF No. 14-15 at 3-61; ECF No. 14-15 at 1-2. Petitioner

filed an application for leave to appeal in the Michigan Supreme Court, and this application was

denied on March 28, 2014. People v. Correa, 843 N.W.2d 767 (Mich. 2014); see also ECF No.

14-16 at 1-29. 

Petitioner maintains that his convictions were based on violations of his Fifth,

Sixth, and Fourteenth Amendment rights. Petitioner sets forth the following claims for relief. 

I. E.C.’s Constitutional Sixth Amendment right to confront the

witnesses against him was encroached upon when the State of

Michigan benefit[t]ed from:

A. [A] testimonial hearsay report generated by a nontestifying witness, i.e., the accusant’s attendant doctor. The

doctor generated the report that declared that he was

“positive” that E.C. sexuallyassaulted his accuser. The doctor

did not testify at trial and the State of Michigan entered the

report into evidence as absolute proof of guilt. 

B. [T]he accusant’s testimonial hearsay statements allegedly

briefed to her mother. The statements were entered into

evidence although the declarer of those statements was not

unavailable nor did E.C. have a prior opportunity to crossexamine the declarer concerning the statements.

C. [T]he accusant’s testimonial hearsay statements allegedly

briefed to her attendant nurse. Again the statements were not

entered into evidence even though the declarer was not

unavailable nor did E.C. have a prior opportunity to crossexamine the declarer concerning those statements.

D. [T]he accusant’s testimonial hearsay statements allegedly

briefed to her attendant police officer. Likewise, the

statements were entered into evidence even though the

declarer was not unavailable nor did E.C. have a prior

opportunity to cross-examine the declarer concerning those

statements.

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II. E.C.’s Constitutional Sixth Amendment right to not be a witness

against himself was encroached upon when the State of Michigan

benefit[t]ed from:

A. [E]xtensive commenting on E.C.’s failure to testify. At

closing arguments, the State of Michigan argued that

unanswered “questions” and uncontradicted evidence proved

E.C.’s guilt. 

B. [C]omments on E.C.’s failure to explain his version of the

facts to a police officer. At closing arguments, the State of

Michigan argued that E.C. did not explain his side of the story

to police and he is guilty because of it.

III. E.C.’s Constitutional Sixth Amendment right to effective

assistance of counsel was encroached upon when the State of

Michigan benefit[t]ed from trial counsel’s:

A. [F]ailure to adequately cross-examine the accusant’s

memory of the alleged events as the accusant’s memory of the

event was lacking in credibility and she made inconsistent

statements in and out of court. 

B. [F]ailure to investigate and consult an expert witness to

offer an opinion regarding memory and its weight on a

person’s ability to accuratelyrecall events. Counsel neglected

to support his theory of the case. 

C. [F]ailure to timely investigate and utilize a carehouse

report. The report contained evidence that the accusant and

her mother evaded several appointments for forensic

interviewing, and the report contained untrue assertions bythe

accusant’s mother. 

D. [F]ailure to discover a 911 recording that contained

statements by a key State witness. Because the State’s case

was based upon pure testimony and no other evidence existed

to prove E.C.’s guilt, the recording potentially contained

impeaching evidence against that key witness’s credibility.

1

1This issue was raised in Petitioner’s amended habeas application. ECF No. 9 at 1. 

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IV. E.C.’s Constitutional Fifth and Fourteenth Amendment right[s]

to a fair trial was [sic] encroached upon when the State of Michigan

benefit[t]ed from:

A. [A] nurse’s vouching for the credibility of the accusant

when she stated that the accusant’s allegations were

consistent with a performed medical examination.

B. [A] jury’s coerced verdict by the judge’s remarks about the

horrendous predicament the jury would confront if a verdict

was not immediately reached that same day.

C. [A] prosecutor’s attack on the veracity of E.C.’s attorney

by implying that he did not believe in his client. The

prosecutor stated that E.C.’s attorney had to create reasonable

doubt where non existed.

D. [A] prosecutor’s personal expression of opinion, an

argument about facts not in evidence, an argument to the jury

to place themselves in the accusant’s shoes, and an argument

placing the weight of her office behind the accusant.

V. E.C’s Constitutional Fifth and Fourteenth Amendment right[s] to

a fair trial was [sic] encroached upon when the State of Michigan

benefit[t]ed from:

A. [A] failure to provide E.C. with an exculpatory 911

recording. On information and belief, the 911 recording

would have discredited the testimony of a material witness,

Tanille Lafay Clark (the caller). 

VI. E.C’s twenty-five minimum sentence for first-degree criminal

sexual conduct amounts to cruel and unusual punishment. 

ECF No. 1 at 5-8. After Petitioner filed his § 2254 claim in this Court, he filed a motion to

amend his original habeas petition (ECF No. 9), which was granted on March 20, 2015 (ECF No.

12). Petitioner failed to file any briefs in support of his habeas application. Respondent filed an

Answer in Opposition to Petitioner’s habeas application on May 1, 2015. ECF No. 13. 

Petitioner did not reply to Respondent’s Answer. The matter is now ready for a decision. 

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 I. 

Petitioner filed this petition after the effective date of the Antiterrorism and

Effective Death Penalty Act of 1996. PUB. L. 104-132, 110 STAT. 1214 (AEDPA); Bell v. Cone,

535 U.S. 685, 693-94 (2002) (noting that AEDPA prevents federal habeas “retrials” and ensures

state convictions are made under state law). 28 U.S.C. § 2254(d) provides that any habeas

application by a person in state custody shall not be granted in regards to any claim that has

previously been adjudicated on the merits in state court unless the adjudication: 

(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. 

28 U.S.C. § 2254(d)(1)-(2). 

This Court may only consider “clearly established holdings” of the Supreme

Court, not lower federal courts, in analyzing a petitioner’s claim under § 2254. Williams v.

Taylor, 529 U.S. 362, 412 (2000); Bailey v. Mitchell, 271 F.3d 652, 655 (6th Cir. 2001). A

decision of the state court may only be overturned if: (1) it applies a rule contradicting Supreme

Court governing law, (2) it contradicts a set of facts materially indistinguishable from a Supreme

Court decision, (3) it unreasonably applies correct Supreme Court precedent to the facts of the

case, (4) it unreasonably extends Supreme Court legal principles where it should not apply, or (5) 

it unreasonably refuses to extend Supreme Court legal principle where it should apply. Bailey,

271 F.3d at 655; see also Lancaster v. Adams, 324 F.3d 423, 429 (6th Cir. 2003). 

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A federal habeas court may not find a state adjudication to be “unreasonable”

simply because that court decides, in its own judgment, that the relevant state decision applied

federal law incorrectly. Williams, 529 U.S. at 410-11 (noting that it must instead determine if the

state court’s application of clearly established federal law was “objectively unreasonable”). This

Court defers to state court decisions when the state court addressed the merits of petitioner’s

claim. Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000); see Wiggins v. Smith, 539 U.S. 510,

534 (2003) (allowing review of habeas application de novo when state court clearly did not reach

the question). When applying AEDPA to state factual findings, factual issues by state courts are

presumed correct unless the petitioner rebuts the presumption with clear and convincing

evidence. 28 U.S.C. § 2254(e)(1); Lancaster, 324 F.3d at 429. 

After applying the standards under AEDPA to Petitioner’s case, this Court

concludes that Petitioner has not provided clear and convincing evidence that the state court

improperly applied clearly established federal law to the facts of Petitioner’s case. 

II.

Petitioner argues that this Court should grant him relief based on violations of his

Fifth, Sixth, and Fourteenth Amendment rights. This Court will review the merits of each claim. 

A. Confrontation Clause

Petitioner’s first group of claims relate to his Sixth Amendment right to confront

the witnesses against him. He claims that this right was violated on four separate occasions by

the state of Michigan: (1) when a report generated by the victim’s doctor was admitted, (2) when

the victim’s statement to her mother was admitted, (3) when the victim’s statement to the nurse

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was admitted, and (4) when the victim’s statement to the police officer was admitted. ECF No. 1

at 5-6. 

The Sixth Amendment states that “[i]n all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend VI;

Pointer v. Texas, 380 U.S. 400, 406 (1965) (noting the Confrontation Clause includes the right to

cross-examine those witnesses). Generally, this means that testimonial out-of-court statements by

witnesses are barred under the Confrontation Clause unless the witnesses are unavailable and

defendants had a prior opportunity to cross-examine the witnesses, regardless of whether such

statements are deemed reliable by the court. Crawford v. Washington, 541 U.S. 36 (2004)

(abrogating Ohio v. Roberts, 448 U.S. 56 (1980)). Notably, however, this right is not absolute

and it may be waived. Jordan v. Warden, Lebanon Correctional Inst., 675 F.3d 586, 594 (6th

Cir. 2012) (“The Constitution guarantees only ‘an opportunity for effective cross-examination,

not cross-examination that is effective in whatever way, and to whatever extent, the defense

might wish.’”) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (emphasis in original));

see also Barber v. Page, 390 U.S. 719, 725 (1968) (“[T]his Court’s definition of a waiver [is] ‘an

intentional relinquishment or abandonment of a known right or privilege.’”) (quoting Johnson v.

Zerbst, 304 U.S. 458, 464 (1938)). 

In general, “[t]here is a presumption against the waiver of constitutional rights . . .

and for a waiver to be effective it must be clearly established that there was ‘an intentional

relinquishment or abandonment of a known right or privilege.’” Brookhart v. Janis, 384 U.S. 1, 4

(1966) (quoting Johnson, 304 U.S. at 464). In order for a waiver to be valid, the record must

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clearly show that the accused comprehends the nature of the waived right and agrees to its

waiver. Faught v. Cowan, 507 F.2d 273, 280 (6th Cir. 1974).

i. Doctor’s Report

Petitioner first claims that his Sixth Amendment right to confront the witnesses

against him was violated when “a testimonial hearsay report generated by a non-testifying

witness, i.e., the accusant’s attendant doctor [was admitted]. The doctor generated the report that

declared that he was ‘positive’ that E.C. sexually assaulted his accuser. The doctor did not testify

at trial and the State of Michigan entered the report into evidence as absolute proof of guilt.”

ECF No. 1 at 5-6. 

This claim was initially raised in Petitioner’s direct appeal to the Michigan Court

of Appeals. See Correa, 2010 WL 1979297, at *11. The Michigan Court of Appeals denied this

claim on procedural grounds, but also noted the following:

In this case, defendant did not object to the admission of the medical

records at trial even though they contained statements from Dr.

Frankowiak. Rather, defendant affirmatively indicated that he had no

objection to their admission. Moreover, defendant did not object

when the trial proceeded without the testimony of Dr. Frankowiak. In

fact, defense counsel expressly waived Dr. Frankowiak’s testimony

at trial, indicating that defendant had no objection to Dr.

Frankowiak’s failure to testify. 

See Correa, 2010 WL 1979297, at *11. This is corroborated by the record:

Defense Attorney: Judge, regarding the issue of Dr. Frankowiak Iwill

speak for myself. I would move at this time to waive his presence. I

have subpoenaed him. I have discussed with my client. He has agreed

with me and has no objection to him not appearing at the trial.

Prosecutor: Your Honor, I also would not call him as a witness . . . .

Court: So both sides are waiving any right to bring this doctor in to

testify; is that right?

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Prosecutor: That is correct, your Honor.

Defense Attorney: Correct.

ECF No. 14-6 at 150-51. Therefore, Petitioner, through his attorney, waived his right to confront

Dr. Frankowiak by agreeing with his attorney that Dr. Frankowiak need not be called as a

witness. Barber, 390 U.S. at 725 (“[T]his Court’s definition of a waiver [is] ‘an intentional

relinquishment or abandonment of a known right or privilege.’”) (quoting Johnson, 304 U.S. at

464). As a result, this claim fails. 

ii. Statements to the Mother, Nurse, and Police

Petitioner’s final three Confrontation Clause claims allege that hearsay statements

were improperly admitted by the victim’s mother, nurse, and police officer. ECF No. 1 at 6; ECF

No. 1 at 6; ECF No. 1 at 6. 

Petitioner initially raised these claims as evidentiary claims in his direct appeal to

the Michigan Court of Appeals; however, he now frames these issues as Confrontation Clause

claims. See Correa, 2010 WL 1979297, at **3-6, 11. The extraordinary remedy of habeas

corpus lies only for a violation of the Constitution. 28 U.S.C. § 2254(a). As the Supreme Court

explained in Estelle v. McGuire, 502 U.S. 62 (1991), an inquiry whether evidence was properly

admitted or improperly excluded under state law “is no part of the federal court’s habeas review

of a state conviction [for] it is not the province of a federal habeas court to re-examine state-court

determinations on state-law questions.” Id. at 67-68. 

Rather, “[i]n conducting habeas review, a federal court is limited to deciding

whether a conviction violated the Constitution, laws, or treaties of the United States.” Id. at 68. 

State-court evidentiary rulings cannot rise to the level of due process violations unless they

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offend some principle of justice so rooted in the traditions and conscience of our people as to be

ranked as fundamental. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000) (quotation

omitted); accord Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001); Bugh v. Mitchell, 329

F.3d 496, 512 (6th Cir.), cert. denied, 540 U.S. 930 (2003). “[C]ourts have defined the category

of infractions that violate fundamental fairness very narrowly.” Bugh, 329 F.3d at 512 (internal

quotations and citations omitted). 

While Petitioner now raises these three claims as Sixth Amendment issues, they

are clearly state law evidentiary issues. Because federal courts cannot intervene on the basis of

perceived errors of state law, these claims are not cognizable on habeas review. Wilson v.

Corcoran, 562 U.S. 1, 16 (2010); Bradshaw v. Richey, 546 U.S. 74, 76 (2005); Pulley v. Harris,

465 U.S. 37, 41 (1984). 

B. Self-Incrimination

Petitioner’s next group of claims allege violations of his right not to be a witness

against himself at trial, which he claims occurred when: (1) the prosecutor commented on

Petitioner’s failure to testify in the closing arguments, and (2) the prosecutor commented on

Petitioner’s failure to explain his version of the facts to a police officer. ECF No. 1 at 6-7. 

While Petitioner has worded these claims as Fifth Amendment self-incrimination

claims, they function substantively as prosecutorial misconduct claims. In order for a petitioner

to be entitled to habeas relief on the basis of prosecutorial misconduct, the petitioner must

demonstrate that the prosecutor’s improper conduct “‘so infected the trial with unfairness as to

make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168,

181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). “[T]he touchstone

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of due process analysis . . . is the fairness of the trial, not the culpability of the prosecutor.” 

Smith v. Phillips, 455 U.S. 209, 219 (1982)). In evaluating the impact of the prosecutor’s

misconduct, a court must consider the extent to which the claimed misconduct tended to mislead

the jury or prejudice the petitioner, whether it was isolated or extensive, and whether the claimed

misconduct was deliberate or accidental. See United States v. Young, 470 U.S. 1, 11-12 (1985). 

The court also must consider the strength of the overall proof establishing guilt, whether the

conduct was objected to by counsel and whether a curative instruction was given by the court. 

See id. at 12-13; Darden, 477 U.S. at 181-82; Donnelly, 416 U.S. at 646-47; Berger v. United

States, 295 U.S. 78, 84-85 (1935). 

In both of Petitioner’s claims, he alleges that the prosecutor improperly referenced

his decision not to testify or speak with police during closing arguments. See ECF No. 1 at 6-7. 

The Michigan Court of Appeals reviewed both of these issues individually. In regard to the

prosecutor’s statements about Petitioner’s failure to testify, the Court of Appeals stated the

following: 

Defendant argues on appeal that he was denied a fair trial as a result

of statements made by the prosecutor during closing argument

regarding defendant’s failure to testify. We disagree. Generally, a

claim of prosecutorial misconduct is a constitutional issue that is

reviewed de novo to determine whether the defendant was denied a

fair and impartial trial. People v. Brown, 279 Mich. App. 116, 134;

755 NW2d 664 (2008). As this issue was not preserved in the trial

court, however, this Court reviews the issue for plain error. Id. Under

the plain error rule, a defendant must establish that 1) error occurred,

2) the error was plain (i.e., clear or obvious), and 3) the error affected

substantial rights. People v. Carines, 460 Mich. 750, 763; 597 NW2d

130 (1999). “The third requirement generally requires a showing of

prejudice, i.e., that the error affected the outcome of the lower court

proceedings.” Id. Reversal is onlywarranted if the plain error resulted

in the conviction of an actually innocent defendant or “seriously

affected the fairness, integrity, or public reputation of judicial

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proceedings’ independent of defendant’s innocence.” Id. at 763-764

(internal quotations and citation omitted). See also People v. Shafier,

483 Mich. 205, 219-220; 768 NW2d 305 (2009). 

Prosecutorial misconduct issues are decided on a case-by-case basis,

and the reviewing court must examine the record and evaluate a

prosecutor’s remarks in context. People v. Thomas, 260 Mich. App.

450, 454; 678 NW2d 631 (2004). “Prosecutorial comments must be

read as a whole and evaluated in light of defense arguments and the

relationship they bear to the evidence admitted at trial.” Brown, 279

Mich. App. at 135. 

A prosecutor may not comment on a defendant’s silence or his failure

to testify. People v. McGhee, 268 Mich. App. 600, 634; 709 NW2d

595 (2005); People v. Abraham, 256 Mich. App. 265, 273; 662

NW2d 836 (2003). Moreover, a prosecutor may not remark regarding

the failure in general of a defendant to present evidence. Abraham,

256 Mich. App. 457, 477; 592 NW2d 767 (1999), and comment on

the failure of the defense to produce evidence on which it relies,

McGhee, 268 Mich. App. at 634.

In this case, the prosecutor made two statements that defendant argues

amounted to misconduct. In the first instance, she stated: 

The defendant’s claiming I didn’t do it, I didn’t do it. What

didn’t he do? Did he ever question anybody about what are

these allegations? He knows immediately I didn’t do it? He

touched my daughter? Did he ask anything else about that?

What did Itouch her with? Where? When? He knows exactly

what mom’s talking about because he was the one that did

this.

I think in this trial, some of the unanswered questions really

do answer the question about whether this defendant is guilty

beyond a reasonable doubt.

In the second instance, the prosecutor stated: 

Now what I meant by some of these unanswered questions

really answer the question about the defendant’s guilt, why

would this defendant be up at four in the morning outside

pacing back and forth? That’s the only evidence you heard.

There’s nothing to the contrary about that. 

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Defendant argues that such statements amounted to burden-shifting,

requiring defendant to provide evidence that he did not commit the

crime rather than the burden being on the prosecution to prove the

elements of the crime. Defendant also argues that the reference to

“unanswered questions” is a comment on defendant’s right to remain

silent. Upon review of the record, it is clear that the prosecutor’s

arguments concerned defendant’s manifestations of consciousness of

guilt immediately after the incident, not whether the burden was on

defendant to prove something or whether defendant should have

testified. The prosecutor’s implication that defendant appeared to

knowmore about the alleged incident than his girlfriend’s accusations

revealed is misguided, as it is not supported by the testimony. That

said, it is undisputed that after the victim told her mother what had

just happened and stood crying in the bathroom, the mother went to

confront defendant and found him outside the house, in the early

morning hours, pacing in the driveway area. Subject to her

unsupported implications regarding defendant’s pre-existing

knowledge, the prosecutor properly argued based on the evidence

presented that defendant’s actions after the incident erased any

reasonable doubt that he committed the crime. The prosecutor did not

explicitly comment on the burden being on defendant to present other

evidence or on defendant’s failure to testify. 

Even if the prosecutor engaged in misconduct, her misconduct was

remedied by the instructions from the trial court. A miscarriage of

justice will not be found “if the prejudicial effect of the prosecutor’s

comments could have been cured by a timely instruction.” People v.

Watson, 245 Mich. App. 572, 586; 629 NW2d 411 (2001) (internal

quotations and citation omitted). The trial court instructed the jury

that the burden was on the prosecution to prove the elements of the

crime and the jury should not consider in its deliberations the fact that

defendant did not testify. The court also instructed the jury that it

should only accept things the lawyers have said that are supported by

the evidence. Therefore, we conclude that the trial court remedied any

potential prejudice suffered bydefendant through its juryinstructions.

Correa, 2010 WL 1979297, at **1-2. In reference to Petitioner’s failure to explain his version of

the facts to a police officer, the Michigan Court of Appeals stated:

Defendant argues in his in propria persona brief that the prosecutor

denied him his right against self-incrimination by commenting on

defendant’s failure to make a statement to the police. We disagree.

Constitutional questions are reviewed de novo, but an unpreserved

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constitutional error is reviewed under the plain error standard.

Shafier, 483 Mich. at 211. 

A defendant in a criminal case has a constitutional right under the

Fifth Amendment of theUnited StatesConstitution against compelled

self-incrimination and may choose to rely on the presumption of

innocence. US Const, Am 5; People v. Fields, 450 Mich. 94, 108; 538

NW2d 356 (1995). “To effectuate this right, no reference or comment

may be made regarding defendant’s failure to testify.” Fields, 450

Mich. at 108-109. In addition, “the right against self-incrimination

prohibits a prosecutor from commenting upon the defendant’s silence

in the face of accusation, but he does not curtail the prosecutor’s

conduct when the silence occurred before any police contact.” People

v. Goodin, 257 Mich. App. 425, 432; 668 MW2d 392 (2003). See

also Shafier, 483 Mich. at 217-218. Evidence of flight does not

implicate a defendant’s Fifth Amendment protection against selfincrimination and may be commented upon by the prosecutor.

Goodin, 257 Mich. App. at 433. Moreover, the Fifth Amendment

does not completely bar comment by the prosecutor on a defendant’s

failure to testify or make another statement, in that under certain

circumstances he or she may fairly respond to an argument of the

defendant by referring to that silence. Fields, 450 Mich. at 110-111.

In her rebuttal closing argument, the prosecutor stated in pertinent

part:

Her mother testified that when she got up, [defendant is] out

of the bed. When she went to bed, [defendant is] there; when

see [sic] gets up, he’s gone. [The victim] said he was in the

bed with her. [The victim] said that he was outside. [The

mother] corroborates that. When she got up, she saw him

outside. Officer Ludd said he tries to rouse him, get him from

the house, knocking on the door, banging on the windows,

you know, Pontiac police, you know, let me in or can I talk to

you. If nothing happened, why wouldn’t he go to the door?

My God, wouldn’t you try to explain to a police officer if

somebody accused you of putting your finger in some child’s

genital opening, do you think that maybe he should have

gotten up and answered the door? That’s not corroboration?

When viewed in context, it is apparent that the statement was not an

improper comment on defendant’s invocation of the right to remain

silent. Rather, it was a comment on defendant’s odd behavior

immediately following the incident used to demonstrate his

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consciousness of guilt. While the last portion of the prosecutor’s

remarks could potentially be viewed as inappropriate if taken out of

context, even assuming they were improper we do not find that they

affected defendant’s substantial rights. See Shafier, 483 Mich. at 211.

Correa, 2010 WL 1979297, at **10-11. The Court of Appeals’ decision is thorough and

complete, and it does not improperly apply federal law to the facts of Petitioner’s case. Bailey,

271 F.3d at 655. 

Even if the prosecutor did violate Petitioner’s Fifth or Sixth Amendment rights

during closing arguments, the Sixth Circuit “has been reluctant to grant habeas petitions based on

improper prosecutorial statements at closing argument.” Wilson v. Mitchell, 250 F.3d 388, 398

(6th Cir. May 14, 2001); O’Hare v. Woods, No. 2:09-13893, 2012 WL 1079753, at *16 (E.D.

Mich. Mar. 30, 2012) (“[T]he Sixth Circuit has held that to constitute error, a prosecutor’s

alleged misconduct of arguing his personal belief, . . . in a defendant’s guilt, must be flagrant and

not isolated.”). In addition, any statements made by the prosecutor that would constitute

improper vouching for Petitioner’s guilt did not “rise to the level of a due process violation

necessary for federal habeas relief[] because the sizeable amount of evidence offered by the state

against petitioner made it unlikely the jury was misled by this brief statement.” O’Hare, 2012

WL 1079753, at *16 (citing Wilson, 250 F.3d at 398). As a result, Petitioner’s claims fail. 

C. Effective Assistance of Counsel

Petitioner’s next group of claims allege that his trial counsel was ineffective when

he: (1) failed to cross-examine the victim’s memory with prior inconsistent statements, (2) failed

to investigate and consult an expert on memory recall, (3) failed to investigate and use Care

House reports, and (4) failed to obtain a 911 recording. ECF No. 1 at 7; ECF No. 9 at 1. 

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In Strickland v. Washington, 466 U.S. 668, 687-88 (1984), the Supreme Court

established a two-prong test by which to evaluate claims of ineffective assistance of counsel. To

establish a claim of ineffective assistance of counsel, the petitioner must prove: (1) that

counsel’s performance fell below an objective standard of reasonableness; and (2) that counsel’s

deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair

outcome. Where counsel’s performance did not fall below an objective standard of

reasonableness, the court need not reach the question of prejudice. See United States v.

Foreman, 323 F.3d 498, 504 (6th Cir. 2003).

A court considering a claim of ineffective assistance must “indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance.” Strickland, 466 U.S. at 689. The defendant bears the burden of overcoming the

presumption that the challenged action might be considered sound trial strategy. Id. (citing

Michel v. Louisiana, 350 U.S. 91, 101 (1955)); see also Nagi v. United States, 90 F.3d 130, 135

(6th Cir. 1996) (holding that counsel’s strategic decisions were hard to attack). The court must

determine whether, in light of the circumstances as they existed at the time of counsel’s actions,

“the identified acts or omissions were outside the wide range of professionally competent

assistance.” Strickland, 466 U.S. at 690. Even if a court determines that counsel’s performance

was outside that range, the defendant is not entitled to relief if counsel’s error had no effect on

the judgment. Id. at 691. 

Moreover, as the Supreme Court has repeatedly recognized, when a federal court

reviews a state court’s application of Strickland under § 2254(d), the deferential standard of

Strickland is “doubly” deferential. Harrington v. Richter, 562 U.S. 86, 105 (2011) (citing

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Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)); see also Burt v. Titlow, 134 S. Ct. 10, 13

(2013); Cullen v. Pinholster, 563 U.S. 170, 189-190 (2011); Premo v. Moore, 562 U.S. 115, 122

(2011). In those circumstances, the question before the habeas court is “whether there is any

reasonable argument that counsel satisfied Strickland’s deferential standard.” Harrington, 562

U.S. at 89; Jackson v. Houk, 687 F.3d 723, 740-41 (6th Cir. 2012) (stating that the “Supreme

Court has recently again underlined the difficulty of prevailing on a Strickland claim in the

context of habeas and AEDPA . . . .”) (citing Harrington, 562 U.S. at 102). Where a prisoner has

raised multiple claims of ineffective assistance of counsel and the state appellate courts have

neglected to address one of the claims, the habeas court’s review on the performance prong is de

novo. See Daniel v. Curtin, 499 Fed App’x 400, 404 (6th Cir. 2012).

i. Victim Cross-Examination and Expert Witness

Petitioner’s first two ineffective assistance of counsel claims were raised in his

motion for relief from judgment in the trial court: (1) failure to effectively cross-examine the

victim, and (2) failure to investigate and consult an expert witness on memory recall. ECF No.

14-9. On September 24, 2012, the trial court denied these claims:

In addition, Defendant cannot show that his appellate counsel was

ineffective or demonstrate actual prejudice because his claims of

ineffective assistance of trial counsel are without merit. Defendant

claims (1) that his trial counsel was ineffective for failing to properly

cross-examine the victim regarding her memory of the incident; (2)

that trial counsel failed to adequately prepare for trial and was

ineffective for failing to investigate or to call an expert witness to

offer and opinion regarding memory and its impact on a person’s

ability to recall events accurately; and (3) that appellate counsel was

ineffective for failing to present the issues on appeal. 

A defendant that claims that he has been denied the effective

assistance of counsel must establish that (1) the performance of his

counsel was below an objective standard of reasonableness under

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prevailing professional norms, and (2) a reasonable probability exists

that, in the absence of counsel’s unprofessional errors, the outcome

of the proceedings would have been different. People v. Pickens, 446

Mich 298, 302-303; 521 NW2d 797 (1994). A defendant must

overcome a strong presumption that the assistance of his counsel was

sound trial strategy. Peopel v. Stanaway, 4464 Mich. 643, 687; 521

NW2d 557 (1994). 

“Decisions regarding what evidence to present, whether to call a

witness, and how to question witnesses are presumed to be matters of

trial strategy . . . .” People v. Horn, 279 Mich. App. 31, 39; 755

NW2d 212 (2008) (internal citations omitted). Similarly, decisions

regarding how to cross-examine and impeach witnesses are matters

of trial strategy. In re Ayres, 239 Mich. App. 8, 23; 608 NW2d 132

(1999); People v. McFadden, 159 Mich. App. 796, 800; 407 NW2d

78 (1987). Defense counsel is afforded wide latitude on matters of

trial strategy. People v. Unger, 278 Mich. App. 210, 242-243; 749

NW2d 272 (2008). To that end, the Court of Appeals abstains from

substituting its judgment for that of defense counsel on such matters.

People v. Avant, 235 Mich. App. 499, 508; 597 NW2d 864 (1999). In

addition, simply because a particular trial strategy does not work does

not constitute ineffective assistance. People v. Matuszak, 263 Mich.

App. 42, 61; 687 NW2d 342 (2004).

Defendant has not overcome the strong presumption that trial

counsel’s cross-examination of the victim and counsel’s decision not

to call an expert witness was sound trial strategy. Accordingly, he has

not shown that appellate counsel was ineffective for failing to present

the issues on appeal. An appellate attorney is not required to raise

every conceivable issue. People v. Reed, 198 Mich. App. 639, 646;

499 NW2d 441 (1993). The failure to assert all arguable claims is not

sufficient to overcome the presumption that counsel functioned as a

reasonable appellate attorney in selecting the issues presented. Id.

Moreover, counsel is not required to advocate a meritless position.

People v. Snider, 239 Mich. App. 393, 425; 608 NW2d 502 (2000). 

ECF 14-9 at 3-5. The Michigan state court’s analysis of these two ineffective assistance of

counsel claims is thorough and complete, and it does not improperly apply federal law to the

facts of Petitioner’s case. Bailey, 271 F.3d at 655. “A court considering a claim of ineffective

assistance of counsel must apply a ‘strong presumption’ that counsel’s representation was within

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the ‘wide range’ of reasonable, professional assistance.” Smith v. Jenkins, 609 Fed. App’x 285,

292 (6th Cir. 2015) (quoting Strickland, 466 U.S. at 697). Petitioner has not satisfied his burden

of showing that his attorney did not function as one guaranteed by the Sixth Amendment. Id.

(citing Strickland, 466 U.S. at 698). 

Moreover, upon review of the trial transcript, it is clear that defense counsel crossexamined the victim at length regarding her memory of this incident, and that counsel attempted

to diminish the victim’s credibility by pointing out inconsistencies in her statements. See, e.g.,

ECF No. 14-6 at 43 (“Q: Do you remember telling us that it was dark in the room? A: No. Q:

You don’t remember that? Is your memory better now or is it better when, back when you

testified in court on July 10th, if you know? A: I don’t remember.”); ECF No. 14-6 at 47 (“Q:

And were the windows closed; do you know? A: It was open . . . . Q: Do you remember when

you testified in Pontiac Court, Leona? A: Yes. Q: And did you remember when I asked you the

question . . . was it open or closed . . . A: Yes. Q: Do you remember saying it was closed? . . . A:

No.”); ECF No. 14-6 at 53-55. Therefore, Petitioner has not overcome the presumption that his

counsel’s decisions were sound trial strategy. Strickland, 466 U.S. at 689 (noting that court

considering a claim of ineffective assistance must “indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.”). As such, this Court

denies Petitioner’s first two ineffective assistance of counsel claims. See Harrington, 562 U.S. at

105 (citing Knowles, 556 U.S. at 123 (noting that when a federal court reviews a state court’s

application of Strickland under § 2254(d), the deferential standard of Strickland is “doubly”

deferential)).

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ii. Care House Reports

Petitioner’s next claim is that his trial attorney failed to, “timely investigate and

utilize a carehouse [sic] report. The report contained evidence that the accusant and her mother

evaded several appointments for forensic interviewing, and the report contained untrue assertions

by the accusant’s mother.” ECF No. 1 at 7. The prosecutor’s witness, Investigator Terry Healy,

testified at trial that Care House is:

[A] child friendlyplace other than a police department where children

can be brought in and interviewed and the purpose of that is to

eliminate how many times or minimize the amount of times they are

interviewed by various agencies. Present for the interviews would

likely be obviously somebody from law enforcement. There would be

someone from Child Protective Services occasionally, then there

would be the actual forensic interviewer who conducts the interview

and there might be a social worker there as well. 

ECF No. 14-6 at 154. 

It is well established that “[c]ounsel has a duty to make reasonable investigations

or to make a reasonable decision that makes particular investigations unnecessary.” Strickland,

466 U.S. at 691. The duty to investigate derives from counsel’s basic function, which is “to make

the adversarial testing process work in the particular case.” Kimmelman v. Morrison, 477 U.S.

365, 384 (1986) (quoting Strickland, 466 U.S. at 690). This duty includes the obligation to

investigate all witnesses who may have information concerning his or her client’s guilt or

innocence. Towns v. Smith, 395 F.3d 251, 258 (6th Cir. 2005). “In any ineffectiveness case, a

particular decision not to investigate must be directly assessed for reasonableness in all the

circumstances, applying a heavy measure of deference to counsel’s judgments.” Strickland, 466

U.S. at 691. “The relevant question is not whether counsel’s choices were strategic, but whether

they were reasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000); accord Clinkscale v.

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Carter, 375 F.3d 430, 443 (6th Cir. 2004). A purportedly strategic decision is not objectively

reasonable “when the attorney has failed to investigate his options and make a reasonable choice

between them.” Combs v. Coyle, 205 F.3d 269, 288 (6th Cir. 2000) (quoting Horton v. Zant, 941

F.2d 1449, 1462 (11th Cir.1991)).

While Petitioner claims that his trial attorney did not investigate or use the Care

House reports in this case, it is clear from the trial transcript that this is not true. Defense counsel

questioned three of the state’s witnesses about the existence of any Care House reports. ECF No.

14-6 at 108-110, 145, 153-55. The witnesses indicated that no Care House report was done in

this case. Id.; see Durr v. Mitchell, 487 F.3d 423, 438 (6th Cir. 2007) (“Counsel then cannot be

faulted for failing to present evidence that apparently does not exist.”). Petitioner’s attorney then

used the fact that a Care House report was not done in this case to show the jury that the victim

was lying about her sexual assault. ECF No. 14-6 at 214-17. Therefore, Petitioner has not

demonstrated that his attorney failed to investigate, or use, evidence relating to Care House

reports. In fact, the record establishes the opposite is true. Consequently, Petitioner’s attorney

did not perform deficiently for failing to investigate and use Care House reports, and this

ineffective assistance of counsel claim is denied. 

iii. 911 Recording

Next, Petitioner asserts that his attorney was ineffective for, “fail[ing] to discover

a 911 recording that contained statements by a key State witness. Because the State’s case was

based upon pure testimony and no other evidence existed to prove E.C.’s guilt, the recording

potentially contained impeaching evidence against that key witness’s credibility.” ECF No. 9 at

1. 

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At the outset, it is not clear that Petitioner informed his attorney about the 911

recording. This is significant because, “counsel is not ineffective for failing to discover evidence

about which the defendant knows but withholds from counsel.” Lackey v. Johnson, 116 F.3d 149,

152 (5th Cir. 1997) (citing Randle v. Scott, 43 F.3d 221, 225 (5th Cir.), cert. denied, 515 U.S.

1108 (1995)); see also United States v. Roane, 378 F.3d 382, 406 (4th Cir. 2004) (noting counsel

was not ineffective when defendant did not inform attorney of certain evidence). 

Moreover, even if Petitioner’s trial attorney had known about the 911 recording,

he was not ineffective since Petitioner has not shown that this recording would have changed the

outcome of his case. Strickland, 466 U.S. at 691 (noting even if an attorney performed

deficiently, he is not ineffective if his deficient performance did not affect the judgment of the

case). The little information the Court has in regard to this recording is that it was a call between

the 911 dispatcher and the victim’s mother on the night of the sexual assault. This, alone, would

not be sufficient evidence to clearly show that the outcome of Petitioner’s case would have been

different but for his attorney’s failure to discover and present the 911 recording at trial. 

Moreover, it is apparent from the trial transcripts that Petitioner’s trial attorney cross-examined

both the victim and her mother, at length, in an attempt to impeach their testimonies. ECF No.

14-6 at 34-57, 64-67, 90-111. Therefore, Petitioner’s attorney was not ineffective, and this claim

fails. 

D. Fair Trial

Petitioner next claims that his Fifth and Fourteenth Amendment rights to a fair

trial were violated by the state of Michigan when: (1) a nurse vouched for the credibility of the

victim at trial; (2) the judge coerced the jury’s verdict; (3) the prosecutor improperly implied that

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Petitioner’s attorney did not believe in his case; and (4) the prosecutor improperly told the jury

about facts not in evidence. ECF No. 1 at 7-8. 

i. Nurse Vouching

Petitioner claims that he was denied a fair trial when, “a nurse vouch[ed] for the

credibility of the [victim] when she stated that the [victim’s] allegations were consistent with a

performed medical examination.” ECF No. 1 at 7-8. To begin, Petitioner’s objection is a matter

of state law that cannot be reviewed by federal courts absent a showing that the admission of the

nurse’s testimony as it relates to the victim’s credibility constituted a denial of fundamental

fairness. Estelle, 502 U.S. at 67-68 (noting that on habeas review, federal courts are limited to

deciding if a conviction violated laws, treaties, or the Constitution and are not to reexamine statecourt determinations of state-law issues). A federal court may only review state law issues if the

state law evidentiary ruling is so egregious as to deny the petitioner a fundamentally fair trial. 

Ege v. Yukins, 485 F.3d 364, 375 (6th Cir. 2007). “Whether the admission of prejudicial

evidence constitutes a denial of fundamental fairness turns upon whether the evidence is material

in the sense of a crucial, critical highly significant factor.” Ege, 485 F.3d at 374 (quoting Brown

v. O’Dea, 227 F.3d 642, 645 (6th Cir. 2000)). Because Petitioner has not shown that the nurse’s

testimony was a highly critical part of his trial, his claim is not reviewable by this habeas court.

However, even if this Court could review Petitioner’s claim, it would still fail. 

“Under Michigan law, an expert [] ‘may not vouch for the veracity of the victim.’” Belcourt v.

Berghuis, No. 08-13808, 2009 WL 2488088, at *3 (E.D. Mich. Aug. 13, 2009) (quoting People

v. Peterson, 450 Mich. 349, 352 (1995)). It is “improper for a lay witness or an expert witness to

offer an opinion vouching for the credibility of another witness.” Coleman v. McKee, No. 1:08-

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CV-391, 2011 WL 3299086, at *13 (W.D. Mich. June 29, 2011) (citing Engesser v. Dooley, 457

F.3d 731, 736 (8th Cir. 2006)). “[G]enerally, improper vouching involves either blunt comments,

or comments that imply that the prosecutor has special knowledge of facts not in front of the jury

or of the credibility and truthfulness of witnesses and their testimony.” United States v. Francis,

170 F.3d 546, 550 (6th Cir. 1999) (citations omitted). However, introducing such testimony does

not automatically make the conviction unconstitutional; rather, the question is whether the

testimony was “so prejudicial as to be fundamentally unfair, thus denying the defendant a fair

trial.” Coleman, 2011 WL 3299086, at *13 (quoting Engesser, 457 F.3d at 736 and citing

Bedford v. Collins, 567 F.3d 225, 233-34 (6th Cir. 2009)). 

The Michigan Court of Appeals was the last court to provide a reasoned decision

regarding this claim. Its decision denying Petitioner’s vouching claim does not rise to the level

of a constitutional violation that would require this court to reexamine the state law

determination:

Defendant argues that the trial court erred in admitting Willis’s

testimony vouching for the credibility of the victim. We disagree.

Because this issue was not preserved in the trial court, our review is

for plain error affecting defendant’s substantial rights. Carines, 460

Mich. at 763-764.

Because Willis testified based on her knowledge, experience, and

training, “it would appear that [her] testimony constituted expert

opinion testimony and not lay opinion testimony under MRE 701.”

People v. Dobek, 274 Mich. App. 58, 77; 732 NW2d 546 (2007). In

cases involving alleged child sexual abuse: “(1) an expert may not

testify that the sexual abuse occurred, (2) an expert may not vouch for

the veracity of a victim, and (3) an expert may not testify whether the

defendant is guilty.” People v. Peterson, 450 Mich. 38, 352; 537

NW2d 857 (1995), amended 450 Mich. 1212 (1995). Even an indirect

reference by an expert may contravene these prohibitions because the

jurymay be looking “to hang its hat” on the testimony of an impartial

witness to back up the complainant’s allegations. Id. at 376. An

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expert’s testimony that his findings are consistent with the alleged

victim’s history is impermissible when based solely on what the

alleged victim told him unless the expert has been qualified as an

assessor of credibility, People v. Smith, 425 Mich. 98, 109; 387

NW2d 814 (1986), as credibility matters are to be determined by the

jury, Dobek, 274 Mich. App. at 71.

In this case, Willis testified as follows:

Q: You talked to [the victim], or [the victim], correct?

A: Correct.

Q: And you were present during the exam, correct?

A: Yes.

Q: And you’d also been present you said during hundreds of exams

of this type of nature of the female genitalia, correct?

A: Correct.

Q: Based on what [the victim] had described had occurred, were the

results of her exam inconsistent?

A: No.

Upon review of this testimony in the context with the rest of the

record, it is apparent that the prosecutor was attempting to solicit

testimony from the witness that a negative physical exam does not

necessarily mean that a sexual assault did not occur. The manner in

which the prosecutor’s question was worded, however, could

arguably be viewed as a back door attempt at implying that if Willis

did not find the results of the exam inconsistent with the child’s

description of what occurred, it was therefore consistent. The

prosecutor could have asked Willis whether, in general, a sexual

assault can occur and generate no physical findings, but the question

here was directed specifically in regard to the victim and whether her

physical exam was inconsistent with her claims. In any event, Willis

testified extensively regarding what the exam (according to the

medical records) did and did not reveal in terms of physical findings.

She never expressed her opinion or belief regarding whether sexual

abuse occurred, but rather, indicated that the exam findings did not

rule out the possibility. Even assuming admission of the testimony

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was erroneous, it does not require reversal because we do not find

that it affected the outcome of the lower court proceedings. See

Carines, 460 Mich. at 763-764.

Correa, 2010 WL 1979297, at **6-7. The Michigan Court of Appeals’ decision is thorough and

complete, and it does not contradict controlling federal law. Bailey, 271 F.3d at 655. The

isolated statements made by the nurse witness were not “crucial, critical highly significant

factors” in Petitioner’s case. Therefore, the admittance of this testimony did not deny Petitioner

his right to a fair trial. Thus, this claim fails. 

ii. Coerced Jury Verdict

Petitioner next claims that he was denied a fair trial when the trial judge “coerced”

the jury’s verdict by shedding light on the “horrendous predictament [sic] the jury would

confront if a verdict was not immediately reached that same day.” ECF No. 1 at 8. 

Federal law states that “[a]ny criminal defendant . . . being tried by a jury is

entitled to the uncoerced verdict of that body.” Lowenfeld v. Phelps, 484 U.S. 231, 241 (1988). 

A habeas court must apply the “totality of the circumstances” test when considering whether a

trial court’s actions or instructions coerced a jury’s verdict. Hamilton v. Burt, No. 2:08-CV13960, 2012 WL 6590745, at *7 (E.D. Mich. Nov. 21, 2012) (citing Early v. Packer, 537 U.S. 3,

8 (2002)). “Under AEDPA, the question is not whether this Court would find the trial court’s

actions coercive; rather, the question is whether the state courts were reasonable in finding no

coercion.” Id. (citing Early, 537 U.S. at 11). 

The last court to issue a reasoned decision on this issue was the Michigan Court of

Appeals:

Defendant argues that the trial court denied defendant a fair trial

because it coerced the verdict through comments that created an

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atmosphere conducive to hasty deliberations. “Claims of coerced

verdicts are reviewed case by case, and all the facts and

circumstances, including the particular language used by the trial

court, must be considered.” People v. Vettese, 195 Mich. App. 235,

244; 489 NW2d 514 (1992).

In the instant case, after delivering instructions on the law to the jury

and before dismissing the jurors to the juryroom for deliberations, the

trial court stated as follows:

All right. Let me tell you what our schedule is at this time and

I’m telling you this not because I’m trying to suggest in any

shape, manner or form how long you should deliberate for,

just want you to know what our schedule is. It’s about 3:30 at

this point. We’ll go today until 4:30. If you have reached a

verdict by 4:30 today, we’ll call you back in here and receive

your verdict at that time and that will conclude your service

on this jury. If you are not able to reach a unanimous verdict

by 4:30 today, we will send you home at that time and you

will have to come back then tomorrow morning at 8:30. I do

want to just alert you to the fact that Wednesday morning is

motion day here in Oakland Circuit Court and that means

every courtroom is going to be filled with lawyers and the

parking lot’s going to be a lot fuller than it has been yesterday

and today. I’m just alerting you to that fact so you can build

in a little more time in your driving, you may be parking just

a little bit further away in the parking lot than you did

yesterday and today and I also don’t want you to be surprised

if you see the hallways and our courtroom with a lot more

lawyers than you have seen on these two days.

Aside from the fact that defendant expressly stated he had no

objections to the jury instructions immediately following the above

comments by the judge, we find that the trial court’s comments were

not an attempt to force a verdict; instead, they merely informed the

jurors regarding necessary logistical information.

Correa, 2010 WL 1979297, at **14-15. Here, the Michigan Court of Appeals’s decision does

not violate clearly established federal law, and the court came to a reasonable conclusion on the

issue of jury coercion in light of the facts and evidence presented. Brown, 531 F.3d at 436; see

e.g., United States v. Ratliff, 63 Fed. App’x 192, 195 (6th Cir. 2003) (“[A trial] court’s statement

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regarding the ability of the jury to deliberate on certain days is not necessarily coercive.”). The

transcripts do not show that the trial judge suggested that the jury must reach a verdict on a

certain day or within a specified amount of time. See Hamilton, 2012 WL 6590745, at *8. 

Therefore, for this Court denies Petitioner’s jury coercion claim. 

iii. Prosecutor’s Implication

Petitioner next argues that he was denied a fair trial when the, “prosecutor[]

attacke[ed] . . . the veracity of [Petitioner’s] attorney by implying that he did not believe in his

client. The prosecutor stated that [Petitioner’s] attorney had to create reasonable doubt w[h]ere

none existed.” ECF No. 1 at 8; see also ECF No. 14-13 at 46-47. 

“It is improper to personally attack defense counsel.” West v. Bell, 550 F.3d 542,

565 (6th Cir. 2008). The prosecutor may not “‘interject[] personal beliefs into the presentation of

his case’ or ‘make unfounded and inflammatory attacks on the opposing advocate.’” Clarke v.

Warren, 556 Fed. App’x 396, 408 (6th Cir. 2014) (quoting Young, 470 U.S. at 8-9). Nor may the

prosecutor belittle the defendant, his counsel, or any of the defendant’s witnesses. Clarke, 556

Fed. App’x at 408 (citing Bedford, 567 F.3d at 233). However, “[h]ow far the government may

go . . . depends on what the defense has said or done (or likely will say or do).” Id. (quoting

United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)). 

The Michigan Court of Appeals considered this issue on Petitioner’s direct

appeal:

Defendant argues that the prosecutor engaged in misconduct and

attacked the veracity of defense counsel by suggesting that he was

intentionally attempting to mislead the jury, implying that he did not

believe his own client. Because this issue was not preserved in the

trial court, our review is for plain error affecting defendant’s

substantial rights. Id.

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A prosecutor may not personally attack defense counsel. People v.

McLaughlin, 258 Mich. App. 635, 646; 672 NW2d 860 (2003). “[A]

prosecutor may not suggest that defense counsel is intentionally

attempting to mislead the jury.” People v. Unger, 278 Mich. App.

210, 236; 749 NW2d 272 (2008) (internal quotations and citation

omitted). A prosecutor’s remarks, however, must be considered in

context with defense counsel’s comments. Watson, 245 Mich. App.

572 at 592-593. An otherwise improper remark may not constitute an

error requiring reversal if it responds to defense counsel’s argument.

Id. at 593. 

In this case, defendant challenges two remarks by the prosecutor. In

the first instance, the prosecutor stated: 

Now I think what [defense counsel] is going to probably

hinge on, couple of things. First of all I guess when there isn’t

any reasonable doubt, you may have to try to create a

reasonable doubt. 

In the second instance, the prosecutor argued:

I’ll try not to belabor this, just touch upon some of the things

[defense counsel] said, but again deflecting, trying to deflect

your attention off of what’s important here, let’s create

reasonable doubt. 

Defendant, however, has taken both of these statements by the

prosecutor out of context. 

After making the first statement, the prosecutor went on to clarify.

She was attempting to preemptively rebut an argument by defense

counsel that there was no CSC on the basis of a check mark made by

the doctor that there was no digital penetration of the victim’s vulva.

The prosecutor further stated: 

The one thing that I guarantee [defense counsel] is going to

probably try to hinge on is when you look at this little check

list here, act described by patient. Dr. Frankowiak stated

fondling, yes. Digital under-vulva penetration? No. Well,

unfortunately Dr. Frankowiak was not the one in the room

with [the victim] when defendant penetrated her genital

opening, [the victim] was. So don’t allow, I’m asking you

don’t allow defendant to make you think that a little tiny

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checklist is going to determine whether or not this actually

happened and whether or not penetration existed.

The prosecutor did not argue that defense counsel was trying to

intentionallymislead the jury. Instead, the prosecutor was attempting

to rebut a legitimate argument by the defense counsel that there was

a reasonable doubt regarding whether penetration occurred as a result

of the medical records and the check mark by Dr. Frankowiak

indicating that it did not occur. 

The prosecutor’s second statement, made during her rebuttal

argument, was responding to defense counsel’s arguments during

closing that there was reasonable doubt regarding defendant’s guilt.

Defense counsel argued that there was no physical evidence tying

defendant to a crime despite the doctor taking a rape kit. He

questioned the veracity of the victim’s testimony because the victim

did not yell out when defendant was assaulting her and she did not

immediately run to her mother. Finally, defense counsel pointed to

the checklist where the doctor noted there was no vulva penetration,

creating reasonable doubt as to defendant’s guilt. In response, the

prosecutor made her second statement at issue-that defense counsel

was trying to deflect the jury’s attention away from what was

important. The prosecutor went on to refute each of defense counsel’s

arguments. She argued that the victim had no reason to misrepresent

what happened to her. She responded to defense counsel’s argument

about the rape kit by going over testimony that sometimes rape kits

are not submitted because the costs are high and the likelihood of

obtaining evidence is low. The prosecutor’sstatementthat the defense

counsel was “creating reasonable doubt” was made in response to

defense counsel’s closing argument. It was not an improper comment

on whether defense counsel was intentionally misleading the jury or

whether defense counsel believed defendant. There was no error. 

In any event, any harm resulting from the prosecutor’s statement was

remedied by instructions from the trial court. See Watson, 245 Mich.

App. 572 at 586. In the jury instructions, the trial court stated, “[t]he

lawyers’ statements and arguments are also not evidence. They’re

only meant to help you understand the evidence and each side’s legal

theories.”

Correa, 2010 WL 1979297, at **7-9. The Michigan Court of Appeals’ decision is thorough and

complete, and its decision does not violate clearly established federal law. Bailey, 271 F.3d at

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655. Since Petitioner has not shown that the prosecutor’s statements attacked or belittled his

attorney, this claim fails. Clarke, 556 Fed. App’x at 408 (quoting Young, 470 U.S. at 8-9). 

iv. Prosecutor’s Personal Opinion

Petitioner’s final argument under this fair trial claim is that the prosecutor

improperly expressed her personal opinions regarding “an argument about facts not in evidence,

an argument to the jury to place themselves in the accusant’s shoes, and an argument placing the

weight of her office behind the accusant.” ECF No. 1 at 8. 

“[A] prosecutor [may not] improperly vouch for the victim’s credibility or express

any opinion regarding such. Instead, the prosecutor [may] merely comment[] on the evidence in

question which he is entitled to do.” Coleman, 2011 WL 3299086, at *16 (citing United States v.

Collins, 78 F.3d 1021, 1039-1040 (6th Cir. 1996) (noting it is improper for any attorney to

express personal opinions or beliefs about the truth or falsity of any testimony, but the attorney

“must be given leeway to argue reasonable inferences from the evidence.”) and United States v.

Reliford, 58 F.3d 247, 250-51 (6th Cir. 1995) (noting it is permissible for a prosecutor to review

the evidence of record and comment on the strength of the prosecutor’s case)). Improper

vouching for the credibility of a witness occurs only when a jury “could reasonably believe that

the prosecutor was indicating a personal belief in a witness’ credibility.” Taylor v. United States,

985 F.2d 844, 846 (6th Cir. 1993). 

Petitioner first raised this issue in his direct appeal to the Michigan Court of

Appeals. ECF No. 14-13 at 109-112. The appellate court denied his claim: 

Defendant argues that he was denied a fair trial due to prosecutorial

misconduct because, during closing argument, the prosecutor

improperly vouched for the credibility of the victim, argued facts not

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in evidence, relied on the prestige of the prosecutor’s office, and

appealed to the sympathy of the jury. We disagree. 

Because this issue was unpreserved, our review is for plain error

affecting defendant’s substantial rights. Carines, 460 Mich. at 763-

764. As indicated, prosecutorial misconduct issues are decided on a

case-by-case basis, and the reviewing court must examine the record

and evaluate a prosecutor’s remarks in context. Thomas, 260 Mich.

App. at 454. “Prosecutorial comments must be read as a whole and

evaluated in light of defense arguments and the relationship they bear

to the evidence admitted at trial.” Brown, 279 Mich. App. at 135. 

A prosecutor may not vouch for the credibility of a witness to the

effect that he has some special knowledge that the witness is

testifying truthfully. People v. Seals, 285 Mich. App. 1, 21; 776

NW2d 314 (2009). A prosecutor may, however, argue from the facts

in evidence that the defendant or another witness is worthy or not

worthy of belief. Dobek, 274 Mich. App. at 67. A prosecutor may not

make a statement of fact to the jury that is unsupported by the

evidence. Unger, 278 Mich. App. at 241. He or she is free to argue

the evidence and all reasonable inferences arising from it as they

relate to his or her theory of the case. Bahoda, 448 Mich. at 282. 

The prosecutor did not vouch for the credibility of the victim. Instead,

she pointed out that the victim had no motive to lie, by stating, “[d]o

you really think that a kid’s going to come in and lie about, in front

of you about what happened in August of 2007?” Such an inference

was proper based on the facts. Moreover, the prosecutor did not rely

on facts not in evidence. Stating that it would be difficult for a nineyear old to articulate that she was sexually assaulted does not require

the testimony of an expert witness but is based instead on common

sense. Finally, the prosecutor was not relying on the prestige of the

prosecutor’s office when she stated, “We’re claiming he used his

finger and put it in the labia majora[,]” but was instead setting forth

the prosecutor’s view of the case. The prosecutor’s statements were

not improper. 

In addition, a prosecutor may not appeal to the jury to sympathize

with the victim. Watson, 245 Mich. App. at 591. According to

defendant, the prosecutor invited the jury to decide the case on the

basis of the victim’s age, not the evidence. Defendant does not point

to any particular statements by the prosecutor during the closing. The

prosecutor asked the jury to evaluate the credibility of the victim

keeping in mind her age, but did not ask the jury to decide the case

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solely on the basis of age. As a result, the prosecutor did not

improperly appeal to the sympathy of the jury. 

Any harm caused by the prosecutor’s statements was remedied by

jury instructions. See id. at 586. The trial court instructed the jurors

that they were to decide the credibility of witnesses. Moreover, jurors

should decide what they believe based on their own common sense

and experiences. In addition, the trial court instructed the jury not to

be influenced by sympathy or prejudice. Therefore, the instructions

cured any potential harm. 

Correa, 2010 WL 1979297, at *11-12. The state court’s decision is thorough and complete, and

it does not violate clearly established federal law. Bailey, 271 F.3d at 655. The prosecutor did

not improperly vouch for the credibility of the victim. Reliford, 58 F.3d at 250-51 (reviewing the

evidence of record and commenting on the strength of the prosecutor’s case is permissible).

Moreover, to the extent that Petitioner claims that the prosecutor impermissibly

appealed to the jury to sympathize with the victim, this claim also fails because this error is cured

by the court’s jury instructions. See Bentley v. Howes, No. 2:09-CV-10106, 2013 WL 2196832,

at *7 (E.D. Mich. May 20, 2013) (noting that the petitioner’s claim that the prosecutor “appealed

to the jury to sympathize with [the victim]” was “defeated by the fact that the trial court

instructed the jury that they were not to let sympathy or prejudice influence their decision.”); see

also Cockream v. Jones, 382 Fed. App’x 479, 486 (6th Cir. 2010) (noting that improper

statements urging the jury to sympathize with the victim were not flagrant, especially considering

the strength of the evidence against the defendant); United States v. Payne, 2 F.3d 706, 712 (6th

Cir. 1993) (condemning “comments [that] had the ability to mislead the jury as well as ignite

strong sympathetic passions for the victims and against [the defendant].”). Therefore, Petitioner

was not deprived of his right to a fair trial, and as such, this claim is denied.

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E. Brady Violation

Petitioner argues that his Fifth and Fourteenth Amendment rights to a fair trial

were violated when the prosecutor failed “to provide [Petitioner] with an exculpatory 911

recording.” ECF No. 1 at 8. Petitioner believes that “the 911 recording would have discredited

the testimony of a material witness, Tenille Lafay Clark (the caller).” Id.

To the extent that Petitioner claims that the prosecutor’s failure to disclose this

recording violated Michigan law, this claim is not cognizable on habeas review because federal

courts have no power to intervene on the basis of a perceived error of state law. Wilson, 562 U.S.

at 16; Bradshaw, 546 U.S. at 76; Pulley, 465 U.S. at 41. 

Moreover, to the extent Petitioner claims that the state committed a Brady

violation by not turning over the 911 recordings, this claim also fails. See Brady v. Maryland,

373 U.S. 83 (1963). The Brady court determined that “a defendant’s due process rights are

violated where the government withholds evidence favorable to a defendant that is ‘material

either to guilt or to punishment.’” Brooks v. Tennessee, 626 F.3d 878, 890 (6th Cir. 2010) (citing

Brady, 373 U.S. at 87); Strickler v. Greene, 527 U.S. 263, 281 (1999) (“[T]he duty to disclose

such evidence is applicable even though there has been no request by the accused . . . and that the

duty encompasses impeachment evidence.”). Evidence is material “if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” Strickler, 527 U.S. at 281 (United States v. Bagley, 473 U.S. 667,

682 (1985)). There are three elements to a Brady violation:

(1) The evidence at issue must be favorable to the accused, either

because it is exculpatory, or because it is impeaching;

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(2) [T]hat evidence must have been suppressed by the State, either

willfully or inadvertently;

(3) [A]nd prejudice must have ensued.

Strickler, 527 U.S. at 281-82.

 Only after all three prongs are established may a court conclude that the

defendant’s due process rights have been violated. Weatherford v. Bursey, 429 U.S. 545, 559

(1977); United States v. Presser, 844 F.2d 1275, 1281 (6th Cir. 1988) (noting due process is

violated when evidence clearly supporting a defendant’s innocence is withheld since that

evidence should have put the prosecutor on notice of a duty to produce). This is because, beyond

Brady, there is no general constitutional right to discovery, and the Brady court did not create

one. See Wardius v. Oregon, 412 U.S. 470, 474 (1973) (“[T]he Due Process Clause has little to

say regarding the amount of discovery which the parties must be afforded.”).

Here, regardless of whether Petitioner has established the first two prongs of

Brady, Petitioner’s Brady claim fails because he has not demonstrated that he suffered any

prejudice as a result of this alleged violation. Petitioner has not provided any explanation of the

importance or materiality of this 911 recording in his case, aside from his belief that it could have

been used to impeach one of the prosecutor’s witnesses. This conclusory allegation does not

establish that there was a reasonable probability that “the result of the trial would have been

different if the suppressed documents [or here, video recording] had been disclosed to the

defense.” Strickler, 527 U.S. at 289. Therefore, Petitioner has not demonstrated any prejudice to

his case by not having or using the 911 recording during trial—meaning no Brady violation has

occurred in this case. Consequently, this claim is denied. 

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F. Minimum Sentence

For Petitioner’s final argument, he claims that the “twenty-five [year] minimum

sentence for first-degree criminal sexual conduct amounts to cruel and unusual punishment.”

ECF No. 1 at 8. To the extent Petitioner claims that this mandatory minimum violates Michigan

law, this claim is not cognizable on habeas review for the reasons outlined in Abdullah Land v.

Rapelje, No. 14-CV-11683, 2014 WL 2779579 (E.D. Mich. June 19, 2014):

This Court initially notes that Petitioner’s sentence was within the

statutory limits under Michigan law for the offense of first-degree

criminal sexual conduct. See[] Mich. Comp. Laws § 750.520b(2)(b). 

State courts are the final arbiters of state law. Bradshaw v. Richey,

546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005) (“We have

repeatedly held that a state court’s interpretation of state law,

including one announced on direct appeal of the challenged

conviction, binds a federal court sitting in habeas corps.”). Therefore,

claims which arise out of a state trial court’s sentencing decision are

not normally cognizable on federal habeas review, unless the habeas

petitioner can show that the sentence imposed exceeded the statutory

limits or is wholly unauthorized by law. Vliet v. Renico, 193 F. Supp.

2d 1010, 1014 (E.D. Mich. 2002). Thus, a sentence imposed within

the statutory limits is not generally subject to habeas review.

Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92 L.Ed. 1690

(1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999).

Land, 2014 WL 2779579, at *3. Since Petitioner has not shown that his sentence exceeded the

statutory limits or was unauthorized by law, this claim is not cognizable on habeas review. Id.

Even if it were, this claim still fails. The court in Land stated the following in

regard to a petitioner’s claim that the mandatory minimum sentence of twenty-five years for CSC

is cruel and unusual:

Petitioner fails to state a claim for federal habeas relief. The United

States Constitution does not require that sentences be proportionate.

In Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d

836 (1991), a plurality of the United States Supreme Court concluded

that the Eighth Amendment does not contain a requirement of strict

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proportionality between the crime and the sentence. The Eighth

Amendment forbids only extreme sentences that are grossly

disproportionate to the crime. Id. at 1001. And a sentence within the

statutory minimum set by statute does not normally constitute cruel

and unusual punishment. Austin v. Jackson, 213 F.3d 298, 302 (6th

Cir. 2000). Moreover, federal courts generally do not engage in a

proportionality analysis, except where the sentence imposed is death

or life imprisonment without parole. United States v. Thomas, 49 F.3d

253, 261 (6th Cir. 1995). Therefore, successful challenges to the

proportionality of a particular sentence in non-capital cases are

“exceedingly rare.” Rummel v. Estelle, 445 U.S. 263, 272, 100 S.Ct.

1133, 63 L.Ed.2d 382 (1980). 

Petitioner’s minimum sentence of twenty five years for first-degree

criminal sexual conduct was not disproportionate to the offense or to

the offender. See, e.g., Stadler v. Curtin, 682 F. Supp. 2d 807, 829-

830 (E.D. Mich. 2010) (“The Michigan courts’ determination that a

sentence of twenty-five to forty years for first degree criminal sexual

conduct was not disproportionate is not an unreasonable application

of this Supreme Court precedent.”). The fact that Michigan’s criminal

sexual conduct statutes calls for a mandatory minimum sentence of

25 years and no longer gives any discretion to the sentencing judge

does not alter the Court’s analysis of Petitioner’s claim. Indeed,

“Harmelin squarely establishes that the mandatory nature of a noncapital penalty is irrelevant for proportionality purposes.” United

States v. Farley, 607 F.3d 1294, 1343 (11th Cir. 2010). As Harmelin

upheld a mandatory nonparolable life sentence for the offense of

possession of over 650 grams of cocaine, it “precludes the conclusion

that [Petitioner’s] much shorter mandatory minimum sentence” was

“cruel and unusual.” United States v. Blewett, 746 F.3d 647, 660 (6th

Cir. 2013). 

Land, 2014 WL 2779579, at *4. Here, much like the defendant in Land, Petitioner’s sentence fell

within the statutory limits of Michigan law for first-degree criminal sexual conduct, and he was

not convicted of life imprisonment without parole or death. Id. Therefore, Petitioner has not

shown that he falls within one of the “exceedingly rare” exceptions that would allow this Court

to undergo a proportionality analysis of his sentence. Id. (citing Rummel, 445 U.S. at 272). As

such, Petitioner’s claim is denied. Bailey, 271 F.3d at 655.

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III.

This Court concludes that all of Petitioner’s claims are without merit. Should

Petitioner choose to appeal this action, the Court must determine whether a certificate of

appealability may be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth

Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of

appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Each issue must be considered

under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant

a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the

district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at

484. The Court examined each of Petitioner’s claims under the Slack standard and concludes

that reasonable jurists could not find that a dismissal of each of Petitioner’s claims was debatable

or wrong. Therefore, this Court denies a certificate of appealability as to each issue raised by

Petitioner. 

For the same reasons the Court dismissed this action, the Court will certify that

any appeal by Petitioner from the Court’s decision and judgment would be frivolous and not

taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any

application by Petitioner for leave to proceed in forma pauperis on appeal is hereby DENIED. 

In summary, Petitioner’s motion for post-conviction relief (ECF No. 1; ECF No.

9) pursuant to 28 U.S.C. § 2254 is DISMISSED WITH PREJUDICE. A judgment consistent

with this Opinion and Order will be entered. In addition, Petitioner’s motion to stay (ECF No.

19) is denied as moot.

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SO ORDERED. 

__/s/ R. Allan Edgar_________________________

Dated: 1/19/2016 R. ALLAN EDGAR

UNITED STATES DISTRICT JUDGE

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