UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL CHARLES COMTOIS, 

 Petitioner, 

 CASE NO. 14-13286 

v. 

 PAUL D. BORMAN 

KENNETH MCKEE, UNITED STATES DISTRICT JUDGE 

 Respondent. 

_________________________________/ 

OPINION AND ORDER DENYING THE HABEAS CORPUS PETITION 

AND DENYING A CERTIFICATE OF APPEALABILITY, BUT 

GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL 

 This matter has come before the Court on petitioner Michael Charles Comtois’ pro 

se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges 

Petitioner’s convictions for first and second-degree criminal sexual conduct. Petitioner 

contends that the evidence at trial was insufficient, the complainant perjured herself, the 

prosecutor failed to try him in a timely manner and also engaged in misconduct during 

closing arguments, and his trial and appellate attorneys were ineffective. The State 

argues in an answer to the petition that five of Petitioner’s claims are procedurally 

defaulted and that the state courts’ adjudications of Petitioner’s other claims were not 

contrary to, or unreasonable applications of, Supreme Court precedent. The Court agrees 

with the State’s assessment of Petitioner’s claims. Accordingly, the petition will be 

denied. 
2 

I. Background 

 Petitioner was charged in Bay County, Michigan with one count of first-degree 

criminal sexual conduct and two counts of second-degree criminal conduct. The charges 

arose from an incident involving a seventeen-year-old girl who had a learning disability. 

 The prosecutor’s theory on count one was that Petitioner penetrated the 

complainant’s labia majora, using force or coercion and causing injury. The prosecutor 

argued in the alternative that Petitioner was guilty of third-degree criminal sexual conduct 

because the complainant was mentally incapable of giving consent or of appraising the 

nature of her conduct. 

 Counts two and three charged Petitioner with second-degree criminal sexual 

conduct for touching the complainant’s breast, using force or coercion and causing injury. 

The prosecutor argued in the alternative that Petitioner was guilty of fourth-degree 

criminal sexual conduct because the complainant was mentally incapable at the time of 

the sexual contact. 

 Petitioner was tried before a jury in Bay County Circuit Court. The Michigan 

Court of Appeals summarized the facts as follows: 

On the day of the assault, the victim met defendant at a park and he asked 

her to walk with him. The victim testified that she and defendant walked 

through some woods and that at some point he picked flowers for her. The 

victim recalled that defendant later touched her buttocks and that she 

objected, that he pushed her to the ground and got on top of her, and that he 

lifted up her shirt and bra and repeatedly touched her breasts.1

 The victim 

also described that defendant took her overalls and underwear off as she 

 

1

 A nurse practitioner who examined the victim testified that the victim told her that 

defendant had also licked and sucked her breasts. 
3 

tried to resist, that he managed to push his pants partially down and move 

her legs apart, that he put his penis partly inside her, and that he placed 

handfuls of dirt in her mouth to prevent her from yelling for help and 

threatened to kill her if she screamed. After the assault, defendant told the 

victim not to tell anyone what had occurred, but the next day she told 

friends about the attack. 

People v. Comtois, No. 286965, 2009 WL 5150061, at *1 (Mich. Ct. App. Dec. 29, 2009) 

(unpublished)(footnote in original). 

 Petitioner did not testify, and his only witness was David Biscigo, an employee of 

the Michigan State Police Crime Lab. Biscigo testified that a man can ejaculate seminal 

fluid even if he does not have a full erection and that seminal fluid on the complainant’s 

underwear could have drained from the complainant’s vagina or come from pre-ejaculate 

or ejaculate. Biscigo also testified that bodily fluid could have been deposited on the 

complainant regardless of whether penetration occurred and that, if fluid was deposited 

near her genital area, the fluid could have transferred from the genital area to her 

underpants. Defense counsel argued to the jury that the complainant was not credible, 

that there was no force or coercion, that the complainant consented to the sexual activity 

and was mentally capable of consenting, and that there was no sexual penetration. 

 On May 20, 2008, the jury found Petitioner guilty, as charged, of one count of 

first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1), and two counts 

of second degree criminal sexual conduct, Mich. Comp. Laws § 750.520(c)(1). The trial 

court sentenced Petitioner as a habitual offender to imprisonment for fifteen to twentythree years for the first-degree conviction and to a concurrent term of five to fifteen years 

in prison for the second-degree convictions. 
4 

 In an appeal of right, Petitioner argued that (1) the evidence at trial was 

insufficient to prove penetration of the complainant’s genital opening and (2) the trial 

court erred by denying his motion to correct the sentence for errors in the scoring of the 

sentencing guidelines. The Michigan Court of Appeals found no merit in Petitioner’s 

claims and affirmed his convictions and sentence in an unpublished, per curiam opinion. 

See Comtois, 2009 WL 5150061. Petitioner raised the same two issues and one new 

issue about appellate counsel in an application for leave to appeal in the Michigan 

Supreme Court. On May 25, 2010, the Michigan Supreme Court denied leave to appeal 

because it was not persuaded to review the issues. See People v. Comtois, 486 Mich. 930 

(2010). 

 Petitioner subsequently filed a motion for relief from judgment in which he raised 

issues about the sufficiency of the evidence, the alleged use of perjury, the delay in trying 

him, the prosecutor’s conduct, the scoring of the sentencing guidelines, and his trial and 

appellate attorneys’ assistance. The trial court found it unnecessary to decide Petitioner’s 

claim about the sentencing guidelines because the Michigan Court of Appeals rejected 

that issue on direct appeal. As for the remaining issues, the trial court stated that 

Petitioner had not shown “good cause” for failing to raise the issues on appeal and 

“actual prejudice” from the alleged irregularities. The court denied Petitioner’s motion 

pursuant to Michigan Court Rule 6.508(D). See People v. Comtois, No. 05-10619-FC 

(Bay Cty. Cir. Ct. Mar. 15, 2013). Petitioner appealed the trial court’s decision, but both 

the Michigan Court of Appeals and the Michigan Supreme Court denied leave to appeal 

for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). See 
5 

People v. Comtois, No. 317621 (Mich. Ct. App. Dec. 27, 2013) (unpublished); People v. 

Comtois, 496 Mich. 859 (2014) (table). 

 On August 22, 2014, Petitioner filed his habeas petition. He asserts as grounds for 

relief that: (1) there was insufficient evidence that he penetrated the complainant’s 

genital opening; (2) the prosecution failed to present any factual evidence to support the 

complainant’s claim that he placed dirt in her mouth and threatened to kill or harm her; 

(3) the prosecution introduced and allowed perjured testimony; (4) the prosecution failed 

to prosecute him in a timely manner; (5) the prosecutor vouched for the complainant and 

portrayed Petitioner as a liar; (6) trial counsel provided ineffective assistance; and (7) 

appellate counsel provided ineffective assistance. 

II. Standard of Review

 “The statutory authority of federal courts to issue habeas corpus relief for persons 

in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA).” Harrington v. Richter, 562 U.S. 86, 97 

(2011). Pursuant to § 2254, the Court may not grant a state prisoner’s application for the 

writ of habeas corpus unless the state court’s adjudication of the prisoner’s claims on the 

merits 

(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). 
6 

 “AEDPA thus imposes a ‘highly deferential standard for evaluating state-court 

rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), and ‘demands that state-court 

decisions be given the benefit of the doubt,’ Woodford v. Visciotti, 537 U.S. 19, 24 

(2002) (per curiam).” Renico v. Lett, 559 U.S. 766, 773 (2010). “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.” 

Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). 

To obtain a writ of habeas corpus from a federal court, a state prisoner must show that the 

state court’s ruling on his or her claim “was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond any possibility for 

fairminded disagreement.” Id. at 103. 

III. Analysis

A. Claim One: Insufficient Evidence 

 Petitioner alleges that he was deprived of due process of law because there was 

insufficient evidence to convict him of penetrating the victim’s genital opening. 

Petitioner contends that the complainant’s testimony was vague as to where he touched 

her and whether he actually penetrated her. The Michigan Court of Appeals adjudicated 

this issue on the merits and concluded on direct review that the evidence sufficiently 

supported Petitioner’s conviction for first-degree criminal sexual conduct. 
7 

1. Clearly Established Federal Law 

 The Supreme Court has held “that the Due Process Clause protects the accused 

against conviction except upon proof beyond a reasonable doubt of every fact necessary 

to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364 

(1970). Following Winship, the critical inquiry on review of a challenge to the 

sufficiency of the evidence supporting a criminal conviction is 

whether the record evidence could reasonably support a finding of 

guilt beyond a reasonable doubt. But this inquiry does not require a 

court to “ask itself whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt.” Instead, the relevant 

question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. 

This familiar standard gives full play to the responsibility of the trier 

of fact fairly to resolve conflicts in the testimony, to weigh the 

evidence, and to draw reasonable inferences from basic facts to 

ultimate facts. 

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (internal citations and footnote omitted) 

(emphases in original). 

 The Supreme Court has “made clear that Jackson claims face a high bar in federal 

habeas proceedings because they are subject to two layers of judicial deference.” 

Coleman v. Johnson, 566 U.S. 650, __, 132 S. Ct. 2060, 2062 (2012) (per curiam). First, 

it is the responsibility of the trier of fact to decide what conclusions should be drawn 

from the evidence admitted at trial. Id. (quoting Cavazos v. Smith, 565 U.S. 1, 2 (2011) 

(per curiam)). 

And second, on habeas review, “a federal court may not overturn a state 

court decision rejecting a sufficiency of the evidence challenge simply 

because the federal court disagrees with the state court. The federal court 
8 

instead may do so only if the state court decision was ‘objectively 

unreasonable.’ ” 

Id. (quoting Smith, 565 U.S. at 2) (quoting Lett, 559 U.S. at 773). 

2. Application

 The Jackson standard “must be applied with explicit reference to the substantive 

elements of the criminal offense as defined by state law.” Jackson, 443 U.S. at 324 n.16. 

Petitioner challenges his conviction for first-degree criminal sexual conduct, which 

involves “sexual penetration with another person” and some other aggravating 

circumstance. Mich. Comp. Laws § 750.520b(1). The only issue in dispute here is 

whether Petitioner sexually penetrated the complainant. 

 Under state law, “sexual penetration” is “sexual intercourse, cunnilingus, fellatio, 

anal intercourse, or any other intrusion, however slight, of any part of a person’s body or 

of any object into the genital or anal openings of another person’s body.” Mich. Comp. 

Laws § 750.520a(r) (emphasis added). “One object of the [Michigan] Legislature in 

providing for degrees of criminal sexual conduct was to differentiate between sexual acts 

which affected only the body surfaces of the victim and those which involved intrusion 

into the body cavities.” People v. Bristol, 115 Mich. App. 236, 238 (1981). 

“[P]enetration of the labia majora is beyond the body surface.” Id. Therefore, the female 

genital opening includes the labia majora. Id. 

 The registered nurse who examined the complainant after the alleged assault 

testified that “[t]he labia majora are the fat, outer lips of a female’s genitalia,” which 

“kinda cover everything else that’s on the inside.” (Trial Tr. Vol. II, at 229, May 14, 
9 

2008.) The complainant testified that Petitioner “stuffed” his penis inside her private 

area, but that it did not go all the way in because it was too little. (Trial Tr. Vol. III, at 

112, May 15, 2008.) When the prosecutor asked the complainant what she used her 

“private area” for, she stated “to pee out of.” (Id. at 113.) Later, on cross-examination, 

defense counsel asked the complainant whether she had said Petitioner was not able to 

put his penis in her. She responded, “Not all the way, it was too short.” (Id. at 146.) 

 A rational juror could have inferred from the testimony that Petitioner penetrated 

the complainant’s labia majora. Therefore, the state appellate court’s conclusion – that 

the evidence supported Petitioner’s conviction for first-degree criminal sexual conduct – 

was not contrary to, or an unreasonable application of, Jackson, and Petitioner is not 

entitled to relief on the basis of his challenge to the sufficiency of the evidence. 

B. Claims Two through Six: Insufficient Evidence of Death Threats and Dirt in 

the Complainant’s Mouth, Perjury, Denial of a Speedy Trial, Prosecutorial 

Misconduct, and Ineffective Assistance of Trial Counsel

 Petitioner raised habeas claims two through six for the first time in his motion for 

relief from judgment. The trial court rejected the claims because Petitioner could have 

raised the claims on direct review. The State therefore argues in its answer to the habeas 

petition that claims two through six are procedurally defaulted. 

1. Procedural Default

 In the habeas context, a procedural default is “a critical failure to comply with 

state procedural law.” Trest v. Cain, 522 U.S. 87, 89 (1997 ). Under the doctrine of 

procedural default, “a federal court will not review the merits of [a state prisoner’s] 

claims, including constitutional claims, that a state court declined to hear because the 
10 

prisoner failed to abide by a state procedural rule.” Martinez v. Ryan, 566 U.S. 1, 9 

(2012). 

Determining whether a habeas petitioner’s claim has been procedurally 

defaulted is a four-step inquiry: 

First, the court must determine that there is a state procedural 

rule that is applicable to the petitioner’s claim and that 

petitioner failed to comply with the rule. . . . Second, the 

court must decide whether the state courts actually enforced 

the state procedural sanction. . . . Third, the court must 

decide whether the state procedural ground is an adequate and 

independent state ground on which the state can rely to 

foreclose review of a federal constitutional claim. . . . Once 

the court determines that a state procedural rule was not 

complied with and that the rule was an adequate and 

independent state ground, then the petitioner must 

demonstrate . . . that there was cause for him not to follow the 

procedural rule and that he was actually prejudiced by the 

alleged constitutional error. 

Kelly v. Lazaroff, 846 F.3d 819, 828 (6th Cir. 2017) (quoting Stone v. Moore, 644 F.3d 

342, 346 (6th Cir. 2011) (quoting Maupin v. Smith, 785 F.2d 135, 138 (6th Cir. 1986)). 

 The state procedural rule in question here is Michigan Court Rule 6.508(D)(3), 

which prohibits state courts from granting relief from judgment if the defendant’s claims 

could have been raised on appeal from the conviction and sentence or in a prior motion. 

An exception to this rule exists when the defendant demonstrates “good cause” for the 

failure to raise the claim on appeal or in a prior post-conviction motion and “actual 

prejudice from the alleged irregularities that support the claim for relief.” Mich. Ct. R. 

6.508(D)(3)(a) - (b). 
11 

 Petitioner violated Rule 6.508(D)(3) by not raising claims two through six on 

direct appeal from his convictions. The first step of the procedural-default inquiry is 

satisfied. 

 When determining whether a state court enforced a state procedural rule, the Court 

“look[s] to the last reasoned state court decision” rejecting the petitioner’s claim. 

Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010) (en banc). The last state court to 

issue a reasoned decision on habeas claims two through six was the trial court, and it 

clearly and expressly relied on Rule 6.508(D)(3) to deny relief. The trial court quoted the 

rule and stated that, with the exception of Petitioner’s claim about the sentencing 

guidelines, Petitioner could have raised his claims on direct review. The trial court went 

on to conclude that Petitioner had failed to establish “good cause” for not raising the 

issues on direct appeal and “actual prejudice” from the alleged irregularities. Because the 

trial court clearly enforced Rule 6.508(D)(3), step two of the procedural-default inquiry is 

satisfied. 

 Step three also is satisfied, because the procedural bar in Rule 6.508(D)(3) is an 

adequate and independent ground on which state courts may rely to foreclose review of a 

habeas petitioner’s federal claims. Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 

2005) (citing Simpson v. Jones, 238 F.3d 399, 407-08 (6th Cir. 2000), and Munson v. 

Kapture, 384 F.3d 310, 315 (6th Cir. 2004)). 

 Step four requires determining whether Petitioner has established “cause” for his 

failure to comply with Rule 6.508(D)(3) and resulting prejudice. Petitioner argues in 

habeas claim seven that his appellate attorney should have raised all his claims on direct 
12 

review. “Ineffective assistance of counsel can constitute cause for a procedural default.” 

Hodges v. Colson, 727 F.3d 517, 530 (6th Cir. 2013), cert. denied, 135 S. Ct. 1545 

(2015). The Court therefore looks to Petitioner’s underlying claims to determine whether 

appellate counsel was ineffective for failing to raise those claims on direct appeal. An 

appellate attorney is constitutionally ineffective if (1) the attorney acted unreasonably in 

failing to discover and raise nonfrivolous issues on appeal and (2) there is a reasonable 

probability that the petitioner would have prevailed on appeal if his appellate attorney 

had raised the issues. Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Strickland v. 

Washington, 466 U.S.668, 687-91, 694 (1984)). 

2. The Underlying Claims

a. Evidence that Petitioner Threatened the Complainant and 

Put Dirt in Her Mouth

 Petitioner alleges in claim two that the prosecution failed to support the 

complainant’s claim that Petitioner put dirt in her mouth and threatened to kill or harm 

her. Petitioner contends that the only evidence of this was the victim’s unsubstantiated 

testimony. 

 Petitioner cites the Supreme Court’s decision in Jackson to support his claim. To 

the extent he is asserting that the prosecution failed to prove the “force or coercion” 

element of the charge against him, his claim lacks merit because it merely challenges the 

complainant’s credibility and the complainant’s testimony in a criminal-sexual-conduct 

case does not have to be corroborated. Mich. Comp. Laws § 750.520h. Thus, appellate 

counsel was not ineffective for failing to raise Petitioner’s second claim on direct review. 
13 

 b. Alleged Perjury

 The third habeas claim alleges that the prosecutor allowed the victim to perjure 

herself. Petitioner contends that the victim’s story changed from when she was initially 

questioned by the police to the time of trial and that the evidence became more damning 

as the case progressed. 

 Prosecutors may not deliberately deceive a court or jurors by presenting evidence 

that they know is false. Giglio v. United States, 405 U.S. 150, 153 (1972). Prosecutors 

also may not allow false evidence to go uncorrected when it appears. Id. But to prevail 

on a claim that the prosecutor presented false testimony, a habeas petitioner must show 

that (1) the testimony was actually false, (2) the testimony was material, and (3) the 

prosecutor knew the testimony was false. Amos v. Renico, 683 F.3d 720, 728 (6th Cir. 

2012); Coe v. Bell, 161 F.3d 320, 343 (6th Cir. 1998) (quoting United States v. 

Lochmondy, 890 F.2d 817, 822 (6th Cir. 1989)). 

 The complainant told the police that Petitioner held her arms down and tried to get 

in her, but she kept her legs together and did not know whether Petitioner was able to get 

in her. (Pet. for Writ of Habeas Corpus, Ex. 1, p. 1) At the preliminary examination, the 

complainant testified that she could not move her legs when Petitioner pinned her down 

and that Petitioner had tried to put his penis in her private area, but he could not put it in 

her all the way. (Prelim. Examination, at 11-12, Aug. 10, 2005.) Finally, at trial, the 

complainant testified her legs were up and apart during the assault and that Petitioner 

stuck his penis part-way inside her private area. (Trial Tr. Vol. III, at 111-12, May 15, 

2008.) 
14 

 Petitioner contends that the complainant’s trial testimony – that her legs were up 

and apart – was inconsistent with the complainant’s statement to the police and testimony 

at the preliminary examination. But the complainant explained at trial that, although she 

had been trying to keep her knees together, Petitioner had spread her legs apart. (Id. at 

142.) Even if the complainant’s testimony was inconsistent with her prior testimony or 

statement to the police, “mere inconsistencies in testimony by government witnesses do 

not establish knowing use of false testimony.” Lochmondy, 890 F.2d at 822. Therefore, 

Petitioner’s perjury claim lacks merit, and appellate counsel was not ineffective for 

failing to raise the claim on appeal. 

 c. The Delay in Trying Petitioner

 The fourth habeas claim alleges that the prosecution failed to try Petitioner in a 

timely manner. Petitioner asserts that he was arrested on July 26, 2005, but not tried until 

May 13, 2008, 331⁄2 months after his arrest. 

 The Sixth Amendment to the United States Constitution provides that, “[i]n all 

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” 

U.S. CONST. amend. VI. When determining whether a particular defendant was deprived 

of his right to a speedy trial, courts must consider and balance the following four factors: 

(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of 

his right to a speedy trial, and (4) any prejudice to the defendant. Barker v. Wingo, 407 

U.S. 514, 530 (1972). None of these four factors is “either a necessary or sufficient 

condition to the finding of a deprivation of the right of speedy trial. Rather, they are 

related factors and must be considered together with such other circumstances as may be 
15 

relevant.” Id. at 533. “A one-year delay is presumptively prejudicial and triggers 

analysis of the remaining Barker factors.” Brown v. Romanowski, 845 F.3d 703, 714 (6th 

Cir. 2017) 

 Petitioner was tried almost three years after his arrest, but much of the delay was 

due to waiting for the results of DNA testing. Because the absence of Petitioner’s DNA 

on the complainant’s underwear would have bolstered Petitioner’s defense, he had an 

interest in having the tests completed, and some of the delay can be attributed to him. 

Brown v. Bobby, 656 F.3d 325, 334 (6th Cir. 2011). Other delays were due to 

Petitioner’s motions for discovery, for an independent polygraph examination, for 

permission to admit evidence of the complainant’s prior false accusation, and for 

appointment of a DNA expert. Nothing in the record suggests that any delay was due to 

bad faith on the part of the prosecution or an attempt to seek a tactical advantage over 

Petitioner. 

 Furthermore, the record indicates that Petitioner stipulated to an adjournment in 

the trial date at least six times, and the last stipulation occurred on April 22, 2008, which 

was less than a month before trial. The record also indicates that Petitioner never 

formally asserted his right to a speedy trial, and even though he alleges that he was 

prejudiced by the delay because he lost his liberty, he was released on bond 51⁄2 months 

after his arrest. For all these reasons, Petitioner’s speedy trial claim lacks merit, and 

appellate counsel was not ineffective for failing to raise a speedy trial claim on direct 

review. 
16 

 d. The Prosecutor’s Conduct

 Habeas claim five alleges that the prosecutor engaged in misconduct by vouching 

for the complainant’s credibility and by denigrating Petitioner during closing arguments. 

The “clearly established Federal law” here is the Supreme Court’s decision in Darden v. 

Wainwright, 477 U.S. 168 (1986), where the Supreme Court stated that 

it “is not enough that the prosecutor[’s] remarks were undesirable or even 

universally condemned.” Darden v. Wainwright, 699 F.2d [1031, 1036 

(11th Cir. 1983)]. The relevant question is whether the prosecutor[’s] 

comments “so infected the trial with unfairness as to make the resulting 

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 

637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). Moreover, the appropriate 

standard of review for such a claim on writ of habeas corpus is “the narrow 

one of due process, and not the broad exercise of supervisory power.” Id., 

at 642, 94 S.Ct., at 1871. 

Id. at 181. 

 i. Vouching 

 Petitioner contends that the prosecutor vouched for the complainant by stating that 

her story was consistent. The actual comment was that the complainant “never changed 

her story.” (Trial Tr. Vol. V, at 83, May 20, 2008.) 

 “Improper vouching occurs when a prosecutor supports the credibility of a 

witness by indicating a personal belief in the witness’s credibility [,] 

thereby placing the prestige of the [prosecutor’s] office . . . behind that 

witness.” United States v. Trujillo, 376 F.3d 593, 607 (6th Cir. 2004) 

(internal quotation marks omitted). “Improper vouching involves either 

blunt comments or comments that imply that the prosecutor has special 

knowledge of facts not in front of the jury.” Id. at 607–08 (internal 

alterations and quotation marks omitted). 

United States v. Garcia, 758 F.3d 714, 723 (6th Cir. 2014) (second alteration and ellipsis 

added). 
17 

 The disputed comment here – that the complainant never changed her story – was 

a response to trial testimony that the complainant had accused her mother’s boyfriend of 

sexually abusing her in the past and then recanted her accusation. The prosecutor was 

attempting to show that, unlike the situation with the mother’s boyfriend, the complainant 

never recanted her accusations about Petitioner. 

 Furthermore, in their role as advocates, prosecutors may seek to establish the 

credibility of their chief witness through argument rather than their own personal 

assurances. Id. at 723. And arguing that prosecution witnesses are credible because their 

testimony was consistent is not improper if the prosecutor did not imply that she 

personally believed the witnesses or that she knew of evidence which demonstrated the 

witnesses’ truthfulness, but was not before the jury. United States v. Jackson, 473 F.3d 

660, 672 (6th Cir. 2007). Here, the prosecutor did not express a personal belief in the 

complainant, and she did not imply that she knew something about the complainant’s 

truthfulness which was not revealed to the jury. Thus, the prosecutor’s comment was 

proper, and appellate counsel was not ineffective for not raising the issue on direct 

appeal. 

 ii. Denigrating Petitioner

 Petitioner contends that the prosecutor engaged in misconduct when she made the 

following comments during closing arguments: 

I think his statements are very important. So you clearly have the 

defendant in this case out and out lying. And then, as it goes, he’s trying to 

explain why things happened. 

 . . . . 
18 

I believe, beyond a reasonable doubt, the evidence has also shown that the 

defendant . . . committed the crime of criminal sexual conduct in the second 

degree. 

 . . . . 

This case is about a predator and his prey. And that’s why he’s guilty 

beyond a reasonable doubt. 

(Trial Tr. Vol. V, at 87, 89-90, May 20, 2008.) 

 Prosecutors should refrain from interjecting their personal beliefs into the 

presentation of their cases, United States v. Young, 470 U.S. 1, 8-9 (1985), and from 

stating a personal opinion concerning the defendant’s guilt, United States v. Daniels, 528 

F.2d 705, 709 (6th Cir. 1976). But they may “argue the record, highlight any 

inconsistencies or inadequacies of the defense, and forcefully assert reasonable inferences 

from the evidence.” Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008). 

 The prosecutor’s remarks in this case were reasonable inferences from evidence 

about Petitioner’s statements to police officers. The evidence established that the 

complainant met Petitioner in the park on Tuesday, May 24, 2005. The alleged assault 

occurred on the following day, Wednesday, May 25, 2005. On the next day, Thursday, 

May 26, 2005, the complainant and her friend met Petitioner in the park and spoke with 

him. Petitioner was stopped by Police Officer Beth Kangas Schwab that day, and he 

informed Officer Schwab that he had spoken to a couple of girls in the park, but that he 

did not know who they were and had not previously met them. (Trial Tr. Vol. II, at 135-

37, 159, May 14, 2008.) 
19 

 On the following day, May 27, 2005, Police Officer Kevin Klein spoke with 

Petitioner. Petitioner told Officer Klein that he first met and spoke with the two girls on 

the previous day (May 26, 2005), and that he did not go for a walk with the girl. (Id. at 

177-78.) A few months later on November 20, 2005, Petitioner told Lieutenant Brian 

Cole of the Michigan State Police that he had tried to have sex with the complainant but 

that she would not allow him to have intercourse with her. So, they stopped what they 

were doing, put their clothes on, and left the park. (Id. at 197-99.) Finally, on January 

20, 2006, Petitioner confronted Lieutenant Cole and accused Cole of writing untrue 

things about him in Cole’s report about his interview with Petitioner on November 20, 

2005. (Id. at 200.) 

 The prosecutor reasonably inferred from Petitioner’s conflicting statements and 

the other evidence in the case that he lied to the police. Moreover, a prosecutor’s 

gratuitous insult and reference to the defendant as a liar does not deprive the defendant of 

a fair trial. Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988). 

 The prosecutor’s other remarks – that Petitioner was a predator and guilty of 

criminal sexual conduct – were supported by testimony that he forced himself on a young 

woman who was a slow learner and dependent on others. And because a prosecutor’s 

reference to a defendant as a “predator” does not necessarily deprive the defendant of a 

fair trial, United States v. Davis, 514 F.3d 596, 616 (6th Cir. 2008), the prosecutor’s 

remarks about Petitioner were not improper. 

 Finally, the trial court instructed the jurors more than once that the attorneys’ 

arguments were not evidence. (Trial Tr. Vol. II, at 99-100, May 14, 2008; Trial Tr. Vol. 
20 

V, at 57, May 20, 2008.) For all these reasons, the prosecutor’s remarks did not deprive 

Petitioner of a fair trial, and appellate counsel was not ineffective for failing to raise 

Petitioner’s prosecutorial-misconduct claim on direct appeal. 

 e. Trial Counsel

 The sixth habeas claim alleges that trial counsel was ineffective. Petitioner 

contends that trial counsel was ineffective for failing to (i) object to the prosecutor’s 

conduct, (ii) object to the speedy-trial violation, (iii) impeach the victim with her prior 

inconsistent statements, (iv) object to the improper preservation of DNA evidence, and 

(v) request an independent examination of the DNA evidence. 

 An attorney is constitutionally ineffective if “counsel’s performance was 

deficient” and “the deficient performance prejudiced the defense.” Strickland, 466 U.S. 

at 687. An attorney’s performance is deficient if “counsel’s representation fell below an 

objective standard of reasonableness.” Id. at 688. The petitioner must show “that 

counsel made errors so serious that counsel was not functioning as the ‘counsel’ 

guaranteed the defendant by the Sixth Amendment.” Id. at 687. 

 An attorney’s deficient performance is prejudicial if “counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. The 

defendant must show “a reasonable probability that, but for counsel’s unprofessional 

errors, the result of the proceeding would have been different.” Id. at 694. 

 The prosecutor’s remarks about the consistency of the complainant’s story and 

Petitioner’s lies did not deprive Petitioner of a fair trial, and Petitioner’s speedy-trial 

claim lacks merit because, among other things, he stipulated to postponements of the trial 
21 

date and he failed to show actual prejudice from the delay. Consequently, trial counsel’s 

failure to object to the prosecutor’s conduct and to the delay in trying Petitioner did not 

constitute ineffective assistance. 

 Petitioner claims that his attorney should have impeached the victim with her prior 

inconsistent statements. The record, however, reveals that defense counsel did question 

the complainant about her prior inconsistent statement to the police in which she stated 

that she held her legs together and that she did not know whether Petitioner had 

penetrated her. (Trial Tr. Vol. III, at 142-44, May 15, 2008.) Defense counsel also 

questioned the complainant about inconsistencies between her statements to a nurse and 

an employee of the Child Advocacy Center. (Id. at 144-46.) The record belies 

Petitioner’s claim about his attorney not attempting to impeach the complainant. 

 Petitioner’s remaining claims about trial counsel concern the DNA evidence. 

Petitioner alleges that defense counsel should have objected to the evidence being 

improperly preserved. According to Petitioner, a buccal swab was taken from him on 

May 26, 2005, and stored in a locker until October 6, 2005, when it was finally removed 

from the locker and refrigerated. 

 Although Petitioner contends that the prosecution acted in bad faith by not 

preserving the evidence, the failure to refrigerate the evidence could have been the result 

of negligence, as opposed to, bad faith. Cf. Arizona v. Youngblood, 488 U.S. 51, 58 

(1988) (stating that the failure to refrigerate the clothing of a sexual assault victim and the 

failure to perform tests on semen samples “can at worst be described as negligent”) 

Furthermore, Petitioner has not shown how failing to refrigerate the sample prejudiced 
22 

him. And even though he contends that defense counsel should have requested an 

independent examination of the DNA evidence, the record indicates that defense counsel 

did request county funds to hire someone who could conduct an independent examination 

of the DNA. See transcript of motion for appointment of DNA expert, ECF No. 11-10. 

 To conclude, trial counsel performed adequately. Therefore, appellate counsel 

was not ineffective for failing to assert a claim about trial counsel on direct appeal. 

3. Conclusion on Claims Two through Six

 Habeas claims two through six regarding trial counsel, the prosecutor’s conduct, 

the lack of a speedy trial, the alleged perjury, and the complainant’s testimony about 

Petitioner’s conduct lack merit. Therefore, appellate counsel was not ineffective for 

failing to raise those claims on direct appeal, and Petitioner has failed to establish “cause” 

for his procedural default of not raising claims two through six on direct appeal. 

 The Court need not determine whether Petitioner was prejudiced by the alleged 

constitutional errors, because he has not shown “cause” for his procedural default. Smith 

v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289 (6th Cir. 

1983). In the absence of “cause and prejudice,” a habeas petitioner can proceed with a 

procedurally defaulted claim only if he “demonstrate[s] that failure to consider the claims 

will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 

722, 750 (1991). “A fundamental miscarriage of justice results from the conviction of 

one who is ‘actually innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) 

(citing Murray v. Carrier, 477 U.S. 478, 496 (1986)). “To be credible, [a claim of actual 

innocence] requires [the] petitioner to support his allegations of constitutional error with 
23 

new reliable evidence – whether it be exculpatory scientific evidence, trustworthy 

eyewitness accounts, or critical physical evidence – that was not presented at trial.” 

Schlup v. Delo, 513 U.S. 298, 324 (1995). 

 Petitioner has not produced any new evidence that was not presented at trial. 

Therefore, a miscarriage of justice will not occur as a result of the Court’s failure to 

address the substantive merits of claims two through six. Those five claims are 

procedurally defaulted, as all four elements of the procedural-default inquiry are satisfied. 

C. Claim Seven: Ineffective Assistance of Appellate Counsel

 The seventh and final claim raises an independent argument about appellate 

counsel. Petitioner contends that appellate counsel did not review all the facts, 

investigate meritorious issues, or include all his issues in the appeal of right. Petitioner 

maintains that, but for counsel’s conduct, the result of the appeal would have been 

different. 

 The trial court addressed and rejected this claim in its order denying Petitioner’s 

motion for relief from judgment. The court stated that Petitioner had “failed to provide 

the Court with any evidence or information to support the theory that appellate counsel 

erred in deciding not to raise certain issues on appeal.” People v. Comtois, No. 05-

10619-FC, Op. and Order Denying Deft’s Mot. for Relief from J., page 6 (Bay Cty. Cir. 

Ct. Mar. 15, 2013) (emphasis in original). 

 It is clearly established federal law that 

[a]ppellate counsel “need not advance every argument, regardless of merit, 

urged by the appellant.” Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 

83 L.Ed.2d 821 (1985)(emphasis in original). Furthermore, there is no 
24 

constitutional right to have every nonfrivolous issue raised on appeal, Jones 

v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), 

and tactical choices regarding issues raised on appeal are properly left to 

the sound professional judgment of counsel. United States v. Perry, 908 

F.2d 56, 59 (6th Cir. 1990). 

Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). “This process of ‘winnowing out 

weaker arguments on appeal and focusing on’ those more likely to prevail, far from being 

evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v. 

Murray, 477 U.S. at 536 (quoting Barnes, 463 U.S. at 751–52). 

 The claims that appellate counsel failed to raise on appeal lack merit for the 

reasons given above, and there is not a reasonable probability that Petitioner would have 

prevailed on appeal if his attorney had raised all his claims on direct review. 

Consequently, appellate counsel was not ineffective, and the state trial court’s rejection of 

Petitioner’s claim about appellate counsel was not contrary to, or an unreasonable 

application of, Supreme Court precedent. “[B]y definition, appellate counsel cannot be 

ineffective for a failure to raise an issue that lacks merit.” Greer v. Mitchell, 264 F.3d 

663, 676 (6th Cir. 2001). 

IV. Conclusion

 Habeas claims two through six are procedurally defaulted, and the state courts’ 

adjudication of Petitioner’s claims about the sufficiency of the evidence and appellate 

counsel did not result in decisions that were contrary to federal law, unreasonable 

applications of federal law, or unreasonable determinations of the facts. Accordingly, the 

habeas petition is denied. 
25 

V. Certificates of Appealability

 “[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no 

automatic right to appeal a district court’s denial or dismissal of the petition. Instead, 

[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v. 

Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the 

applicant has made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). 

Where a district court has rejected the constitutional claims on the merits, 

the showing required to satisfy § 2253(c) is straightforward: The petitioner 

must demonstrate that reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable or wrong . . . . When the 

district court denies a habeas petition on procedural grounds without 

reaching the prisoner’s underlying constitutional claim, a [certificate of 

appealability] should issue when the prisoner shows, at least, that jurists of 

reason would find it debatable whether the petition states a valid claim of 

the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling. 

Slack v. McDaniel, 529 U.S. 473, 484 (2000). 

 Reasonable jurists could not debate the Court’s assessment of Petitioner’s first and 

seventh claims regarding the sufficiency of the evidence and appellate counsel. 

Reasonable jurists also could not find it debatable whether the Court’s procedural ruling 

on claims two through six is correct or whether the petition states a valid claim of the 

denial of a constitutional right. The Court therefore declines to grant a certificate of 

appealability on any of Petitioner’s claims. Petitioner nevertheless may proceed in forma 

pauperis on appeal if he appeals this decision, because he was granted leave to proceed in 
26 

forma pauperis in this Court, and an appeal could be taken in good faith. Fed. R. App. P. 

24(a)(3)(A). 

 s/Paul D. Borman 

 Paul D. Borman 

 United States District Judge 

Dated: May 22, 2017 

CERTIFICATE OF SERVICE 

 The undersigned certifies that a copy of the foregoing order was served upon 

each attorney or party of record herein by electronic means or first class U.S. mail 

on May 22, 2017. 

 s/D. Tofil 

 Deborah Tofil, Case Manager