UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

COLLIN D. PITTMAN,

Petitioner,

Civil Case No. 14-14405

v. Honorable Linda V. Parker

STEVE RIVARD, 

Respondent.

____________________________/

OPINION AND ORDER

DENYING THE PETITION FOR WRIT OF HABEAS CORPUS,

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,

AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Michigan prisoner Collin D. Pittman (“Petitioner”) has filed a pro se habeas 

corpus petition challenging his Oakland County convictions for two counts of 

criminal sexual conduct. Petitioner raises twelve claims regarding probable cause 

to arrest him, a state deadline for trying him, the admission of certain evidence at 

trial, the prosecutor’s conduct, the trial court’s rulings and jury instructions, the 

assistance provided by trial and appellate counsel, his sentence, and newly 

discovered evidence. The State urges the Court to deny the petition on grounds 

that Petitioner’s claims are procedurally defaulted, are not cognizable on habeas 

review, or are meritless. Additionally, the State contends that the state courts’ 
2

rejection of Petitioner claims was objectively reasonable. The Court agrees that 

Petitioner’s claims do not warrant relief. Accordingly, the petition will be denied. 

II. BACKGROUND

Petitioner’s convictions arose from criminal sexual conduct involving his 

niece, the victim, when she was about fourteen years old.

At Petitioner’s jury trial in Oakland County Circuit Court, sixteen-year-old 

MJ1 testified that she was living in a residential center for juvenile delinquents. 

She previously lived at Children’s Village in Pontiac, where she and the victim

became friends. At some point during the girls’ stay at Children’s Village, the 

victim confided in her about something. MJ advised the victim to tell a counselor 

about the matter, and the victim took her advice. MJ admitted that she was 

rewarded for good behavior while confined as a juvenile delinquent and that she 

would prefer living in the community, but she denied being promised anything for 

her testimony.

Yolanda Stafford testified that she was a youth specialist at Oakland County 

Children’s Village where she met MJ and the victim. According to Stafford, one

night at bedtime, the victim informed her of something that Ms. Stafford had to 

report. The victim did not provide any details or a name, but she did mention that 

 

1

 The Court is referring to the witness by her initials because she was a juvenile at 

the time.
3

the person was related to her. Ms. Stafford’s supervisor completed a form about 

the matter, and the matter was recorded on a log.

The victim testified that her date of birth was October 21, 1990, and that she 

was almost nineteen years old. She explained that, when she was about fourteen 

years old, she and her brother stayed at her grandfather’s house while her mother 

was in the process of moving. Petitioner was her uncle, and he was also living at 

her grandfather’s house at the time. One night, her grandfather was sleeping 

upstairs, and her brother was asleep in a back room. She was sleeping on a couch 

in the living room of the house when her uncle approached her and laid on top of 

her. He used his private part to touch her “butt,” and he used his hand to touch 

both her “butt” and her private part. Then he took off her underpants and inserted 

his penis in her vagina. Afterward, he got up and went upstairs. She went to the 

bathroom and noticed blood on her underwear and nightgown. She spent the rest 

of the night in her brother’s room with the door locked.

The victim did not disclose the incident to her grandfather or brother 

because she did not think they would believe her, and she did not tell her mother 

because her uncle was her mother’s brother, and her mother would have been hurt 

by the information. She ultimately revealed the incident to MJ at the Children’s 

Village when MJ informed her about what had happened to her. She went back to 
4

her grandfather’s house many times after the incident with her uncle, but her uncle

would act as though nothing had happened.

On cross-examination, the victim expressed some uncertainty about the date 

of the crimes. She also admitted that, when Petitioner got locked up, she used to 

write letters to him, and in one letter she wrote that she loved him and missed him. 

The victim explained that her mother pressured her to write to Petitioner and that 

she had not wanted her mother to know what Petitioner had done to her.

The victim’s mother, Eugenia Pittman, testified that Petitioner and the 

victim were very close at one time. Their relationship deteriorated at some point, 

and in 2007, the victim disclosed something to Ms. Pittman. Regarding Petitioner, 

Ms. Pittman testified that he could be good at times and bad at times. One time in 

2005, he became violent with a person in the victim’s presence. He beat one of his 

cousins and threatened to kill someone.

Sarah Killips testified as an expert in forensic interviewing and the 

characteristics of child sexual assault victims. She interviewed the victim on 

January 23, 2008, when the victim was seventeen years old. The victim made an 

allegation of sexual abuse by an uncle. Ms. Killips opined that it was common for 

children to delay disclosure of sexual abuse.
5

Petitioner chose not to testify, but he presented Detective Paul McDougal 

and his brother Anthony Pittman as defense witnesses. Detective McDougal 

testified that he wrote in his incident report that the crimes occurred between the 

months of October and November 2005. He admitted that he did not go in the 

house where the crimes supposedly occurred and that he did not interview the 

victim or the victim’s mother, brother, or grandfather. He also did not know 

whether Petitioner was in custody on October 4, 2005.

Petitioner’s brother, Anthony Pittman, testified that he was living with his 

father and nephew in 2004 and 2005 and that the victim may have spent a night or 

two there when she did not have a ride. Anthony denied hearing any commotion 

that would suggest the victim had been assaulted, and he did not see any signs that 

anything inappropriate had occurred at the house. Anthony described Petitioner as 

a nice guy who was helpful. He admitted that Petitioner had gone to prison more 

than once for drugs, but he did not think that Petitioner had a drug problem. He 

was unaware of a conviction for assault and battery, and he did not think Petitioner 

had a history of violent behavior. He also did not see a violent outburst between 

Petitioner and one of his nephews. 

The parties stipulated that Petitioner was in custody from July 13, 2004 to 

December 29, 2004, from August 19, 2005 to September 7, 2005, and from 
6

October 4, 2005 to the present. They further stipulated that Petitioner was not in 

custody from December 29, 2004 to August 10, 2005 and from September 7, 2005 

to October 4, 2005.

On October 16, 2009, the jury found Petitioner guilty, as charged, of one 

count of first-degree criminal sexual conduct in violation of Michigan Compiled

Laws § 750.520b(1)(b)(ii), and one count of second-degree criminal sexual 

conduct in violation of Michigan Compiled Laws § 750.520c(1)(b)(ii). The trial 

court sentenced Petitioner as a habitual offender to concurrent terms of

imprisonment of twenty-two years, nine months to forty years.

On appeal from his convictions, Petitioner argued: (1) he was denied a fair 

trial by extensive evidence that he had been in prison; (2) he was denied due 

process and a fair trial by evidence that he had engaged in violent behavior, the 

prosecutor’s statement that Petitioner had been convicted of assault and battery, 

evidence that he had gone to prison for a drug offense, and the prosecutor’s 

argument regarding illegal drugs; (3) the evidence was insufficient to support his 

convictions beyond a reasonable doubt; (4) the time limits of Michigan Compiled 

Laws § 780.131(1) were violated; (5) offense variable four of the Michigan 

sentencing guidelines was improperly scored at ten points; and, (6) defense counsel 

deprived him of effective assistance by failing to make proper objections and a 
7

record. These six claims form Petitioner’s first six grounds for federal habeas 

relief.

The Michigan Court of Appeals rejected Petitioner’s claims and affirmed his 

convictions in an unpublished, per curiam decision. People v. Pittman, No. 

297391, 2011 WL 2555389 (Mich. Ct. App. June 28, 2011). On November 21, 

2011, the Michigan Supreme Court denied leave to appeal because it was not 

persuaded to review the issues. People v. Pittman, 805 N.W.2d 202 (Mich. 2011).

In June 2012, Petitioner filed a motion for relief from judgment in the state 

trial court in which he raised the following arguments: (1) the trial court abused its 

discretion and deprived him of a fair trial by failing to dismiss his case for a 

violation of the State’s 180-day rule, failing to appoint substitute counsel despite a 

conflict of interest, improperly instructing the jury on “mental anguish,” failing to 

grant a directed verdict of acquittal, and exceeding the sentencing guidelines

without substantial and compelling reasons; (2) the prosecutor deprived him of a 

fair trial by coaching and intimidating witnesses, using perjured testimony, and 

shielding the victim from him; (3) the police lacked probable cause to arrest him; 

and, (4) trial counsel was ineffective for failing to investigate witnesses and consult 

Petitioner. These claims form the basis for Petitioner’s seventh through tenth 

habeas claims. The trial court denied Petitioner’s motion because he previously 
8

raised, or could have raised, the claims on appeal and because Petitioner had not 

met his burden of proving entitlement to relief under Michigan Court Rule 

6.508(D). See People v. Pittman, No. 09-226631-FC, Op. and Order (Oakland 

Cty. Cir. Ct. Nov. 21, 2013).

Petitioner appealed the trial court’s decision, but the Michigan Court of 

Appeals denied leave to appeal for the reasons given by the trial court: Petitioner 

had alleged grounds for relief which were previously decided against him or could 

have been raised on appeal and because he failed to establish entitlement to relief 

under 6.508(D). People v. Pittman, No. 320131 (Mich. Ct. App. Apr. 18, 2014). 

Petitioner did not appeal the Michigan Court of Appeals’ decision. See Affidavit 

of Larry Royster, Clerk of the Michigan Supreme Court, ECF No. 8-14.

In a post-conviction motion for an evidentiary hearing, Petitioner purported 

to have newly discovered impeachment evidence. He also alleged that he was 

denied the effective assistance of appellate counsel. These arguments comprise 

Petitioner’s eleventh and twelfth habeas claims. The trial court treated Petitioner’s 

motion as a successive motion for relief from judgment and denied the motion. 

People v. Pittman, No. 2009-226631-FC, Order (Oakland Cty. Cir. Ct. Feb. 27, 

2014). Petitioner raised the same two issues in the Michigan Court of Appeals, 

which dismissed Petitioner’s appeal under Michigan Court Rule 7.203(F)(1), 
9

because Petitioner was attempting to appeal the denial of a successive motion for 

relief from judgment. People v. Pittman, No. 322425 (Mich. Ct. App. July 21, 

2014).

Petitioner appealed to the Michigan Supreme Court, which denied leave to 

appeal because Petitioner’s motion was prohibited by Michigan Court Rule

6.502(G), the rule governing second or successive motions for relief from 

judgment. People v. Pittman, 861 N.W.2d 899 (Mich. 2015). On September 9, 

2015, the Michigan Supreme Court denied Petitioner’s motion for reconsideration. 

People v. Pittman, 868 N.W.2d 471 (Mich. 2015).

Finally, on November 17, 2014, Petitioner filed his habeas corpus petition. 

Although the State argues in an answer to the habeas petition that some of 

Petitioner’s claims are procedurally defaulted, a procedural default is not a 

jurisdictional matter. Trest v. Cain, 522 U.S. 87, 89 (1997). Additionally, to 

prevail on procedurally defaulted claims, a petitioner “must establish cause and 

prejudice for the defaults” and “also show that the claims are meritorious.” Babick 

v. Berghuis, 620 F.3d 571, 576 (6th Cir. 2010). In the interest of efficiency, the 

Court will bypass the alleged procedural defaults and go directly to the merits of 

Petitioner’s claims, as the claims lack substantive merit, and “the cause-andprejudice analysis adds nothing but complexity to the case.” Id. 
10

III. 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). 

“[A] federal habeas court may not issue the writ simply because that court 

concludes in its independent judgment that the relevant state-court decision applied 

clearly established federal law erroneously or incorrectly. Rather, that application 

must also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). 

“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-
11

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.

Furthermore, a state court’s determination of a factual issue is presumed to 

be correct unless the petitioner rebuts the presumption of correctness with clear 

and convincing evidence. 28 U.S.C. § 2254(e)(1); Holland v. Rivard, 800 F.3d 

224, 242 (6th Cir. 2015), cert. denied, 136 S. Ct. 1384 (2016). In addition, “review 

under § 2254(d)(1) is limited to the record that was before the state court that 

adjudicated the claim on the merits.” Cullen v. Pinholster, 563 U.S. 170, 181 

(2011).
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IV. ANALYSIS

A. Claim One: Inadmissible Evidence of Imprisonment

Petitioner alleges in claim one that he was denied a fair trial by extensive 

evidence that he had been in prison. As examples of this, Petitioner points to: the 

prosecutor’s comments during opening statements that the crimes occurred when 

Petitioner was home after being away (10/15/09 Trial Tr., Afternoon Session, at 14 

and 18, ECF No. 8-5 at Pg ID 297, 301); defense counsel’s reference to 

correspondence between Petitioner and the victim (id. at 25, Pg ID 308); the 

victim’s testimony that, after the crime, Petitioner “was still out” and “still around” 

(id. at 119, Pg ID 402); the victim’s testimony about her correspondence with 

Petitioner while Petitioner was in prison (id. at 124, Pg ID 407); defense counsel’s 

question to Detective McDougal as to whether Petitioner was in custody on 

October 4, 2005 (10/16/09 Trial Tr. at 124-28, ECF No. 8-6 at Pg ID 541-45); and 

the prosecutor’s closing argument that the range of dates when the crimes occurred 

was based on times when Petitioner was not in custody (id. at 145-46, Pg ID 562-

63).

The Michigan Court of Appeals determined that some of these references to 

Petitioner’s incarceration were not prejudicial and that Petitioner opened the door 
13

to other comments about his prior incarceration. This Court agrees for the 

following reasons.

First, as noted by the Michigan Court of Appeals, the jury would not 

necessarily have understood the comments and testimony about Petitioner being 

away, “still out,” or “still around” to mean that Petitioner had been in prison. 

Second, it was defense counsel who elicited testimony that the victim had written 

to Petitioner in prison. It was also defense counsel who asked Detective 

McDougal whether Petitioner was in custody on October 4, 2005. Because 

defense counsel invited the claimed errors, Petitioner may not claim now that the 

errors deprived him of a fair trial. See Fields v. Bagley, 275 F.3d 478, 486 (6th 

Cir. 2001) (“When a petitioner invites an error in the trial court, he is precluded 

from seeking habeas corpus relief for that error.”)

Finally, part of Petitioner’s defense was that he could not have committed 

the crimes because he was in custody at the time. The Court, therefore, concludes 

that the references to Petitioner being in custody did not violate his right to a fair 

trial. The references were either too vague to be prejudicial or they were invited 

errors that were meant to support the defense theory. 
14

B. Claim Two: Prosecutorial Misconduct

Petitioner alleges in claim two that he was denied due process and a fair trial 

when the prosecutor did the following: elicited Ms. Pittman’s testimony that 

Petitioner previously engaged in violent behavior (10/16/05 Trial Tr. at 21-24, 

ECF No. 8-6 at Pg ID 438-39); asked Petitioner’s brother whether Petitioner had 

been convicted of assault and battery and had gone to prison for a drug offense (id. 

at 113-14, Pg ID 530-31); and stated during her closing argument that Petitioner 

may have committed the crimes in question while he was under the influence of 

illegal drugs (id. at 124, Pg ID 541).

1. Clearly Established Federal Law

“Claims of prosecutorial misconduct are reviewed deferentially” in a habeas 

corpus proceeding. Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004). “[T]he 

touchstone of due process analysis in cases of alleged prosecutorial misconduct is 

the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 

455 U.S. 209, 219 (1982). The relevant question is whether the prosecutor’s 

conduct infected the trial with such unfairness as to make the resulting conviction a 

denial of due process. Darden v. Wainwright, 477 U.S. 168, 181 (1986).

Because that standard is “a very general one,” courts have 

considerable leeway in resolving such claims on a case-by-case basis. 

Parker v. Matthews, 567 U.S. 37, 48, 132 S.Ct. 2148, 183 L.Ed.2d 32 

(2012) (per curiam). That leeway increases in assessing a state court’s 

ruling under AEDPA. [Courts] “cannot set aside a state court’s 
15

conclusion on a federal prosecutorial-misconduct claim unless a 

petitioner cites . . . other Supreme Court precedent that shows the state 

court’s determination in a particular factual context was 

unreasonable.” Trimble [v. Bobby, 804 F.3d 767, 783 (6th Cir. 

2015)].

Stewart v. Trierweiler, 867 F.3d 633, 638-39 (6th Cir. 2017).

2. Application

Testimony from the victim’s mother that Petitioner had previously engaged 

in violent behavior was proper because it explained why the victim may have 

feared Petitioner and delayed disclosing what Petitioner had done to her. This was 

relevant evidence, and according to the Michigan Court of Appeals, it was offered 

for a proper purpose under the Michigan Rules of Evidence. Pittman, 2011 WL 

2555389, at *2.

Likewise, the prosecutor’s questions about Petitioner’s prior convictions for 

assault and battery and a drug offense were proper. Because Petitioner’s brother 

initially vouched for Petitioner’s character, the prosecutor was permitted to crossexamine him about Petitioner’s specific acts of misconduct. According to the 

Michigan Court of Appeals, the testimony was admissible to rebut the brother’s 

favorable character evidence and to test his knowledge and candor. The state 

court’s interpretation of state law binds this Court sitting in habeas corpus, 

Bradshaw v. Richey, 546 U.S. 74, 76 (2005), because “it is not the province of a 
16

federal habeas court to reexamine state-court determinations on state-law 

questions.” Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

The prosecutor’s comment during closing arguments that Petitioner may 

have committed the crimes in question while he was under the influence of illegal 

drugs was not improper for a different reason. The comment was a reasonable 

inference from the victim’s testimony that Petitioner was not acting normally on 

the night in question (10/15/09 Trial Tr., Afternoon Session, at 91-92, ECF No. 8-5 

at Pg ID 374-75) and that he had acted as though she was not his niece and did not 

care about what he was doing (id. at 83-84, Pg ID 366-67). Prosecutors may 

“forcefully assert inferences from the evidence.” Cristini v. McKee, 526 F.3d 888, 

901 (6th Cir. 2008). Moreover, the Court cannot conclude that the prosecutor’s 

conduct infected the trial with such unfairness as to make the resulting conviction a 

denial of Petitioner’s due process rights.

To conclude, the disputed comments and questions did not deprive Petitioner 

of a fair trial, and the state appellate court’s rejection of Petitioner’s claim was not 

unreasonable. Furthermore, to the extent Petitioner is complaining that the trial 

court erred by permitting the prosecutor to introduce evidence of Petitioner’s 

propensity to commit crime, his claim is not cognizable on habeas review. “There 

is no clearly established Supreme Court precedent which holds that a state violates 
17

due process by permitting propensity evidence in the form of other bad acts 

evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). Thus, “there is no 

Supreme Court precedent that the trial court’s decision could be deemed ‘contrary 

to’ under AEDPA.” Id. at 513. Petitioner has no right to relief on the basis of his 

prosecutorial-misconduct claims.

C. Claim Three: Insufficient Evidence

Petitioner alleges next that the evidence was insufficient to support his 

convictions beyond a reasonable doubt. The Michigan Court of Appeals 

concluded on direct review of Petitioner’s claim that his challenge to the 

sufficiency of the evidence failed. 

1. Clearly Established Supreme Court Precedent

The United States 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 
18

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, 651 (2012) (per curiam). First, it 

is the responsibility of the jury 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 instead 

may do so only if the state court decision was ‘objectively unreasonable.’” Id. 

(quoting Smith, 565 U.S. at 2); see also Tanner v. Yukins, 867 F.3d 661, 672 (6th 

Cir. 2017) (explaining that “two layers of deference apply [to a sufficiency-of-theevidence claim], one to the jury[’s] verdict, and one to the state appellate court”).
19

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. To prove first-degree criminal sexual conduct, as charged in this 

case, the prosecutor had to prove that Petitioner was related to the victim and 

sexually penetrated her when she was thirteen, fourteen, or fifteen years of age. 

Mich. Comp. Laws § 750.520b(1)(b)(ii). To prove second-degree criminal 

conduct, the prosecutor had to prove that Petitioner was related to the victim and 

had sexual contact with her when she was thirteen, fourteen, or fifteen years of age. 

Mich. Comp. Laws § 750.520c(1)(b)(ii).

As previously explained, the victim testified that Petitioner was her uncle 

and that he penetrated her vagina with his penis when she was fourteen years old. 

She also testified that Petitioner touched her “butt” and genital area with his hand. 

(10/15/05 Trial Tr., Afternoon Session, at 63, 65, 77-83, ECF No. 8-5 at Pg ID 

346, 348, 360-66.) This testimony established the elements of first-degree and 

second-degree criminal sexual conduct, and in criminal sexual conduct cases, the 

victim’s testimony need not be corroborated. Mich. Comp. Laws § 750.520h; 

People v. Solloway, 891 N.W.2d 255, 262 (Mich. Ct. App. 2016), appeal denied, 

894 N.W.2d 604 (Mich. 2017). 
20

Nevertheless, Petitioner maintains that the victim was not credible. He 

points to the victim’s testimony that the crimes occurred shortly before her 

birthday on October 21, 2005 (10/15/09 Trial Tr., Afternoon Session, at 100-01, 

116-17, ECF No. 8-5 at Pg ID 383-84, 399-400), even though the parties stipulated 

that Petitioner was in custody from October 5, 2005, to the present (10/16/05 Trial 

Tr. at 79, ECF No. 8-6 at Pg ID 496). Additionally, the victim was unsure whether 

the crimes occurred during winter, summer, spring, or fall (10/15/09 Trial Tr., 

Afternoon Session, at 106-07, ECF No. 8-5 at Pg ID 380-81), and she continued to 

go back to her grandfather’s home after the incident even though Petitioner was 

there (id. at 91, Pg ID 374).

While it is true that the victim was uncertain about when the crimes 

occurred, “time is not of the essence nor a material element in a criminal sexual

conduct case, at least where the victim is a child.” People v. Stricklin, 413 N.W.2d 

457, 463 (Mich. Ct. App. 1987). This is true even in cases where the defendant 

claims to have an alibi. People v. Dobek, 732 N.W.2d 546, 565 (Mich. Ct. App. 

2007).

Furthermore, the jury could have inferred from the victim’s testimony that 

the crimes occurred on October 1, 2, or 3, 2005. This brief block of time was 

shortly before her birthday on October 21, 2005, and it coincided with the time that 
21

Petitioner was not in custody. Also, as the Michigan Court of Appeals pointed out, 

the jury could have reasoned that the victim’s uncertainty about the dates was due 

to her not disclosing the incident until 2007 and not testifying at Petitioner’s trial 

until 2009.

Finally, “‘attacks on witness credibility are simply challenges to the quality 

of the government’s evidence and not to the sufficiency of the evidence,’” Martin 

v. Mitchell, 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo,

742 F.2d 927, 935 (6th Cir. 1984)), and an assessment of a witness’s credibility 

generally is “beyond the scope of federal habeas review of sufficiency of evidence 

claims.” Matthews v. Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003). In 

sufficiency-of-the-evidence challenges, the Court does “not reweigh the evidence, 

re-evaluate the credibility of witnesses, or substitute [its] judgment for that of the 

jury.” Tanner, 867 F.3d at 672.

A rational trier of fact could have concluded from the evidence, when 

viewed in the light most favorable to the prosecution, that Petitioner was not in 

custody when the crimes occurred. A rational trier of fact also could have 

concluded that Petitioner was related to the victim and that he engaged in sexual 

penetration and sexual contact with the victim when she was at least thirteen years 

of age and less than sixteen years of age. Therefore, the evidence was sufficient to 
22

support Petitioner’s convictions, and the decision of the Michigan Court of 

Appeals was neither contrary to, nor an unreasonable application of, Jackson.

Petitioner has no right to relief on the basis of his challenge to the 

sufficiency of the evidence. The mere existence of sufficient evidence to convict 

defeats his claim. Matthews, 319 F.3d at 788-89.

D. Claim Four: Violation of the State’s 180-Day Rule

Petitioner alleges next that the charges against him should have been 

dismissed because the State’s 180-day rule was violated. This rule provides:

Whenever the department of corrections receives notice that there is

pending in this state any untried warrant, indictment, information, or 

complaint setting forth against any inmate of a correctional facility of 

this state a criminal offense for which a prison sentence might be 

imposed upon conviction, the inmate shall be brought to trial within 

180 days after the department of corrections causes to be delivered to 

the prosecuting attorney of the county in which the warrant, 

indictment, information, or complaint is pending written notice of the 

place of imprisonment of the inmate and a request for final disposition 

of the warrant, indictment, information, or complaint.

Mich. Comp. Laws § 780.131(1). The remedy for a violation of this rule is 

dismissal of the charges with prejudice. Mich. Comp. Laws § 780.133.

The alleged violation of the State’s 180-day rule is not a basis for habeas 

relief because, “[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.” McGuire, 502 U.S. at 68. “A federal court may not issue the writ 
23

on the basis of a perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 

(1984).

Petitioner attempts to raise his claim as a federal constitutional issue by 

alleging that the failure of the Michigan Department of Corrections to send the 

appropriate notice to the prosecutor violated his right to due process. Petitioner 

appears to argue in the alternative that the prosecution did receive notice of his 

incarceration, but failed to try him within 180 days.

Petitioner admitted in the trial court that he was arraigned on April 22, 2009. 

He would have received notice of the charges then. His trial commenced six 

months and eight days later on October 15, 2009, and he has not shown, or even 

alleged, how he was prejudiced by the delay in trying him. As the Michigan Court 

of Appeals reasoned, “[t]o establish a due process violation requiring reversal, a 

defendant must prove prejudice to his defense.” Pittman, 2011 WL 2555389, at *1 

(citing People v. McGee, 672 N.W.2d 191, 201 (Mich. Ct. App. 2003); see also 

United States v. Schaffer, 586 F.3d 414, 425 (6th Cir. 2009) (quoting United States 

v. Gouveia, 467 U.S. 180, 192 (1984)) (“The Supreme Court has repeatedly 

emphasized that, in order to establish a due process violation, the defendant must 

show that the delay ‘caused him actual prejudice in presenting his defense.’”). 

Thus, Petitioner’s right to due process was not violated.
24

E. Claim Five: Improperly Scored Offense Variable

Petitioner alleges that the trial court erred by scoring ten points for offense 

variable four of the Michigan sentencing guidelines. The Michigan Court of 

Appeals disagreed and concluded that the trial court did not abuse its discretion 

when scoring the offense variable.

This Court finds no merit in Petitioner’s claim because a challenge to the 

state court’s application and interpretation of state sentencing guidelines is “a 

matter of state concern only,” Howard v. White, 76 F. App’x 52, 53 (6th Cir. 

2003), and “federal habeas corpus relief does not lie for errors of state law.” Lewis 

v. Jeffers, 497 U.S. 764, 780 (1990). Consequently, Petitioner’s claim is not 

cognizable on habeas review. Tironi v. Birkett, 252 F. App’x 724, 725 (6th Cir. 

2007); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson 

v. Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). A sentencing claim based 

on an alleged violation of Michigan law simply fails to state a claim on which 

habeas relief may be granted. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 

2000).

Petitioner nevertheless contends that he was sentenced on inaccurate 

information. A sentence based on extensively and materially false information that 

the defendant had no opportunity to challenge violates due process. Townsend v. 
25

Burke, 334 U.S. 736, 741 (1948). For the following reasons, however, this Court 

finds that the trial court did not rely on extensively and materially false 

information.

Offense variable four “is psychological injury to a victim.” Mich. Comp. 

Laws § 777.34(1). Ten points is appropriate if “[s]erious psychological injury 

requiring professional treatment occurred to a victim.” Mich. Comp. Laws 

§ 777.34(1)(a). “In making this determination, the fact that treatment has not been 

sought is not conclusive.” Mich. Comp. Laws § 777.34(2). A score of zero is 

proper if “[n]o serious psychological injury requiring professional treatment 

occurred to a victim.” Mich. Comp. Laws § 777.34(1)(b).

According to Petitioner, there was no testimony that the victim received any 

professional treatment or even that she needed professional treatment. The 

Michigan Court of Appeals, however, correctly pointed out that the victim

blamed her significant behavioral problems, to which her mother 

testified, on defendant’s assault. Also, at trial, the victim appeared to 

become so overwhelmed while testifying about the assault that she 

simply stopped answering questions and cried. Further, the victim’s 

mother indicated that the victim would not provide an impact 

statement because it was still very hard for her to talk to anyone about 

what happened.

Pittman, 2011 WL 2555389, at *4.
26

This Court agrees with the Michigan Court of Appeals that “it was 

reasonable for the trial court to deduce that the victim suffered a serious 

psychological injury.” Id. The trial court did not rely on extensively and 

materially false information. Therefore, Petitioner is not entitled to re-sentencing.

F. Claim Six: Ineffective Assistance of Trial Counsel

Petitioner alleges that his trial attorney deprived him of effective assistance 

by failing to make proper objections and a record. Petitioner appears to argue, as 

he did in state court, that defense counsel was ineffective for failing to object to 

evidence that he had been in prison and to the prosecutor’s questions or elicitation 

of evidence concerning his other “bad acts.” The Michigan Court of Appeals 

considered this issue on direct review and concluded that defense counsel was not 

ineffective.

1. Clearly Established Supreme Court Precedent

The “clearly established Federal law” for claims of ineffective assistance of 

counsel is Strickland v. Washington, 466 U.S. 668 (1984). Pinholster, 563 U.S. at 

189. Under Strickland, a defendant must show “that counsel’s performance was 

deficient” and “that the deficient performance prejudiced the defense.” Strickland, 

466 U.S. at 687. “Unless a defendant makes both showings, it cannot be said that 
27

the conviction . . . resulted from a breakdown in the adversary process that renders 

the result unreliable.” Id.

“[T]he proper standard for attorney performance is that of reasonably 

effective assistance.” Id. The defendant must show “that counsel’s representation 

fell below an objective standard of reasonableness.” Id. at 688.

The “prejudice” prong “requires showing that counsel’s errors were so 

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

Id. A defendant must demonstrate “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694.

2. Application

Trial counsel’s failure to object to comments about Petitioner being away 

was not deficient performance because the comments were vague and did not 

mention Petitioner’s incarceration. Further, counsel’s intentional elicitation of 

testimony that Petitioner had been in prison was a strategic decision, meant to 

show that Petitioner could not have committed the charged crimes. Because this 

was a reasonable trial strategy, counsel’s performance was not deficient.
28

The prosecutor’s comments and questions about Petitioner’s past violence 

and convictions were relevant and proper under state law, and the prosecutor’s 

closing argument about Petitioner possibly being under the influence of illegal 

drugs when the crimes occurred was a reasonable inference from the evidence. 

The prosecutor’s conduct was not improper, and, therefore, defense counsel’s 

failure to object to the conduct did not constitute ineffective assistance. Further, 

the state appellate court’s finding – that trial counsel was not ineffective – was 

neither contrary to, nor an unreasonable application of, Strickland. Habeas relief is 

not warranted on Petitioner’s claim.

G. Claim Seven: Abuse of Discretion

1. Failure to Dismiss the Charges

Petitioner alleges that the trial court abused its discretion and deprived him 

of a fair trial by denying his motion to dismiss his case for a violation of the State’s 

180-day rule.

The prosecuting attorney in Petitioner’s case argued that the 180-day rule 

was not triggered because the Michigan Department of Corrections never sent a 

certified notice of Petitioner’s incarceration to her office. (10/14/09 Hr’g Tr. at 8, 

11, ECF No. 8-3 at Pg ID 140, 143; 10/15/09 Trial Tr., A.M. Session, at 8-11, ECF 

No. 8-4 at Pg ID 152-55.) According to Petitioner’s trial counsel, he spoke by 
29

telephone to an employee of the Michigan Depart of Corrections who conceded to 

defense counsel that the Department of Corrections never sent a certified notice of 

Petitioner’s incarceration to the prosecutor. (10/14/09 Hr’g Tr. at 3-7, ECF No. 8-

3 at Pg ID 135-39.) Furthermore, the prosecutor pointed out that the case had been 

moving along since March 2009 when the prosecution became aware of the case, 

that Petitioner had not been held in jail, and that the prosecution had acted in good 

faith. (Id. at 9.)

Petitioner argued that the detective in the case received notification from the 

Department of Corrections as early as April 7, 2009. (10/15/09 Trial Tr., A.M. 

Session, at 5, ECF No. 8-4 at Pg ID 149.) Yet, “investigating police officers . . . 

are not part of the prosecutor’s office,” and “[t]he 180–day–rule statute expressly 

provides that the Department of Corrections must deliver a written notice of 

incarceration and request for disposition ‘to the prosecuting attorney of the county 

in which the warrant, indictment, information, or complaint is pending . . . .’ ” 

People v. Williams, 716 N.W.2d 208, 214-15 (Mich. 2006) (quoting Mich. Comp. 

Laws § 780.131(1)).

Here, the Michigan Department of Corrections never notified the prosecutor 

of Petitioner’s incarceration. Therefore, the 180-day rule was not triggered, and 
30

the trial court did not abuse its discretion or deprive Petitioner of a fair trial by 

declining to dismiss his case under the rule.

2. Failure to Appoint Substitute Counsel 

Petitioner alleges next that the trial court abused its discretion by failing to 

appoint substitute counsel for him despite a conflict of interest between Petitioner

and his attorney. The trial court rejected this claim during the post-conviction 

proceedings because Petitioner had not pointed to any specific disagreements with 

defense counsel over fundamental trial tactics. The court concluded that 

Petitioner’s general statements about defense counsel’s representation did not 

constitute good cause for substitution of counsel and that Petitioner was not 

entitled to relief from judgment on the issue.

a. Clearly Established Federal Law

The Sixth Amendment to the United States Constitution provides the 

accused in a criminal prosecution “the right . . . to have the Assistance of Counsel 

for his defense.” U.S. Const. amend. VI. Nevertheless, the right to counsel of 

choice does not extend to defendants like Petitioner who had counsel appointed for 

them. United States v. Gonzalez-Lopez, 548 U.S. 140, 143, 151 (2006) (quoting 

Caplin v. Drysdale, Chartered v. United States, 491 U.S. 617, 624-35 (1989) 

(“[T]he Sixth Amendment guarantees a defendant the right to be represented by an 
31

otherwise qualified attorney whom the defendant can afford to hire, or who is 

willing to represent the defendant even though he is without funds.”).

Moreover, an accused “must show good cause such as a conflict of interest, 

a complete breakdown in communication or an irreconcilable conflict with his 

attorney in order to warrant substitution.” Wilson v. Mintzes, 761 F.2d 275, 280 

(6th Cir. 1985). Consideration of motions for substitution of counsel “requires a 

balancing of the accused’s right to counsel of his choice and the public’s interest in 

the prompt and efficient administration of justice.” Id.

b. Application

On the morning of trial, Petitioner asked the trial court to discharge his trial 

attorney and to appoint another attorney for him. He claimed that trial counsel did 

not take his case seriously and was making false allegations, siding with the 

prosecutor, not doing his job, and not keeping Petitioner’s best interests in mind. 

Petitioner also claimed that the client/attorney relationship was nonexistent. 

(10/15/09 Trial Tr., A.M. session, at 12-14, ECF No. 8-4 at Pg ID 156-58.)

Defense counsel informed the trial court that he in fact visited Petitioner five 

times in jail (and had the cards reflecting those visits) and saw Petitioner in the 

detention area of the courthouse. (Id. at 11, 14-15, Pg ID 158-59.) Defense 

counsel stated that he moved for discovery and to have the matter remanded to the 
32

district court, but the trial court denied his requests. (Id. at 15, Pg ID 159.) 

Defense counsel noted that he also attempted to get documentation to support 

Petitioner’s claim under the 180-day rule, and while there was some disagreement

between him and Petitioner, the rules of evidence prevented him from doing some 

of the things Petitioner requested. Id. Defense counsel maintained that he was 

prepared to try the case. Id.

Petitioner responded to defense counsel’s comments by complaining of the 

lack of communication between them. Petitioner claimed he sat in prison for two 

and a half months without a visit from counsel and that counsel called him only 

one time in four months. (Id. at 16.)

The trial court determined that Petitioner failed to allege any details or 

specific reasons for discharging defense counsel, and even though there was no 

communication for a time, defense counsel had filed motions and participated in 

the case. The trial court also took note of defense counsel’s caliber and 

competence and the fact that the jury was about to be impaneled. (Id. at 17-18.) 

With these considerations in mind, the trial court denied Petitioner’s motion for 

substitution of counsel. (Id. at 18.)

Petitioner did not renew his request for substitution of counsel, and the 

record indicates that he subsequently consulted with counsel on issues such as 
33

whether to testify and which witnesses to call. In the end, Petitioner appeared to be 

satisfied with counsel’s recommendations regarding trial strategy. He did not have 

a constitutional right to a “meaningful relationship” with his attorney, Slappy, 461 

U.S. at 14, and he has failed to show an actual conflict of interest, a complete 

breakdown in communication with his attorney, or an irreconcilable conflict with 

trial counsel. Therefore, the trial court did not abuse its discretion in denying 

Petitioner’s request to appoint another attorney for him immediately before trial.

3. The Jury Instructions

Petitioner alleges that the trial court abused its discretion by incorrectly 

instructing the jury on mental anguish. Because the trial court did not read an 

instruction on mental anguish, the Court understands Petitioner to be saying that 

the trial court erred by not addressing the issue of mental anguish during its charge 

to the jury.

The fact that a jury instruction may have been incorrect under state law is 

not a basis for habeas relief. McGuire, 502 U.S. at 71-72 (citing Marshall v. 

Lonberger, 459 U.S. 422, 438 n.6 (1983)). The only question on habeas review 

with respect to jury instructions “is ‘whether the ailing instruction by itself so 

infected the entire trial that the resulting conviction violates due process.’” Id. at 

72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).
34

In response to Petitioner’s jury instruction claim, the trial court pointed out

on post-conviction review that mental anguish is not an element of criminal sexual 

conduct, as charged in this case. It is only an element in cases where the criminal 

sexual conduct resulted in personal injury to the victim or where force or coercion 

was used to accomplish sexual penetration. See Mich. Comp. Laws 

§ 750.520b(1)(f). Petitioner, however, was charged based on his relation to the 

victim. See id. §§ 750.520b(1)(b), .520(c)(1)(b). Neither mental anguish nor 

personal injury are elements under these provisions. Therefore, the trial court did 

not abuse its discretion or deprive Petitioner of due process and a fair trial by 

failing to instruct the jury on mental anguish.

4. Denying the Motion for a Directed Verdict 

Petitioner alleges that the trial court abused its discretion by denying his 

motion for a directed verdict of acquittal at the close of the prosecution’s proofs.

In Michigan, “the trial judge when ruling on a motion for a directed verdict 

of acquittal must consider the evidence presented by the prosecution up to the time 

the motion is made, view that evidence in a light most favorable to the prosecution, 

and determine whether a rational trier of fact could have found that the essential 

elements of the crime were proven beyond a reasonable doubt.” People v. 

Hampton, 285 N.W.2d 284, 288 (Mich. 1979)(internal and end citations omitted). 
35

A state court’s alleged misapplication of state law regarding a motion for a directed 

verdict is not a cognizable claim in a federal habeas corpus proceeding. King v. 

Trippett, 27 F. App’x 506, 510 (6th Cir. 2001).

The victim, moreover, testified that Petitioner penetrated her with his penis 

and had sexual contact with her when she was fourteen years old. This testimony 

satisfied the elements of the crimes, namely, penetration and sexual contact with a 

relative who was at least thirteen years old and less than sixteen years old. See

Mich. Comp. Laws §§ 750.520b(1)(b)(ii), 750.520c(1)(b)(ii). Consequently, a 

rational trier of fact could have determined that the prosecution proved the 

essential elements of the charged crimes beyond a reasonable doubt, and the trial 

court did not abuse its discretion by denying Petitioner’s motion for a directed 

verdict of acquittal.

5. Exceeding the Sentencing Guidelines 

Petitioner’s final claim about the trial court is that the court exceeded the 

sentencing guidelines without providing substantial and compelling reasons for the 

departure. This claim has no basis in fact because the guidelines called for a 

minimum sentence of ten and a half to thirty-five years in prison, and the trial court 

sentenced Petitioner within that range to a minimum sentence of twenty-two years, 
36

nine months. (11/25/09 Sentencing Tr. at 35-37, ECF No. 8-7 at Pg ID 630-32.) 

Therefore, Petitioner’s claim lacks merit.

H. Claim Eight: Additional Prosecutorial Misconduct

Petitioner asserts that the prosecutor deprived him of a fair trial by coaching 

witnesses, using perjured testimony, intimidating witnesses, and shielding the 

victim from him.

1. Clearly Established Federal Law

As noted above, the relevant question on review of the prosecutor’s conduct 

is whether the conduct infected the trial with such unfairness as to make the 

resulting conviction a denial of due process. Darden, 477 U.S. at 181. The trial 

court found no merit in Petitioner’s prosecutor-misconduct claim when addressing 

the issue on post-conviction review, and this Court may not set aside that 

conclusion unless Petitioner shows that the state court’s determination was 

unreasonable.

Petitioner contends that the prosecutor relied on false testimony and 

intimidated her key witnesses. 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). But to prevail on a claim that the prosecutor relied on false 

testimony, a habeas petitioner must show that (1) the testimony was actually false, 
37

(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)).

2. Application

In an affidavit signed about two and a half years after Petitioner’s trial, the 

victim states that she does not know why she was asked to go to court because 

“nothing happen[ed].” She goes on to say that her Uncle Collin “did not touch 

her” and that the only reason she said something different to people in the juvenile 

home was to get out of the home early. (See ECF No. 8-16 at Pg ID 1307.)

The victim’s mother states in an affidavit that she and the victim were forced 

to perjure themselves at Petitioner’s trial and that the prosecutor forced her to go to 

court by threatening to get a warrant for her arrest. (Id. at Pg ID 1313.) The 

mother also states that the victim did not want anything to do with the case and that 

the prosecutor used the victim’s juvenile case against her. (Id.) According to the 

mother, the victim did not want to have her uncle go away for something that the 

victim said out of spite and anger. (Id.) The mother further states that she and her 

daughter would like Petitioner to be free and back with his family because “[t]his 

was all a big mistake, all is forgiven.” (Id.)
38

The trial transcript reflects that the victim was soft-spoken at trial and 

stopped answering questions at one point. (10/15/09 Trial Tr., Afternoon Session, 

at 69-75, ECF No. 8-5 at Pg ID 352-58.) The prosecutor’s and defense counsel’s

closing arguments suggested that the victim was even rude to the attorneys during 

her testimony. (10/16/05 Trial Tr. at 122-23, 133, ECF No. 8-6 at 539-40, 550). 

Nevertheless, the record does not support the contention that the prosecutor 

encouraged the victim or her mother to lie, coerced them into testifying against 

Petitioner, or intimidated them. The witnesses may have felt pressured to testify, 

but Petitioner has failed to show that the witnesses testified falsely and that the 

prosecutor knew that the testimony was false. The victim’s recanting affidavit, 

moreover, must be viewed with “extreme suspicion.” Williams v. Coyle, 260 F.3d 

684, 708 (6th Cir. 2001).

Even if the prosecutor’s conduct was improper, defense counsel was able to 

effectively challenge the victim’s testimony by highlighting inconsistencies in her 

testimony, by describing her as a troubled young woman, and by emphasizing that 

she delayed disclosing the crimes for years. The jury had sufficient information to 

assess the witnesses’ credibility, and any impropriety on the part of the prosecutor 

did not deprive Petitioner of a fair trial or due process.
39

Petitioner’s claim about being shielded from the victim is based on the fact 

that the victim apparently did not face him when she testified. She did, however, 

testify before the jury in open court, and defense counsel had an ample opportunity 

to cross-examine her. The trial court correctly observed on review of Petitioner’s 

claim that Petitioner’s right of confrontation was not violated. See Maryland v. 

Craig, 497 U.S. 836, 846 (1990) (stating that “physical presence, oath, crossexamination, and observation of demeanor by the trier of fact—serves the purposes 

of the Confrontation Clause by ensuring that evidence admitted against an accused 

is reliable and subject to the rigorous adversarial testing that is the norm of Anglo–

American criminal proceedings”). Petitioner’s claims about the prosecutor lack 

merit and do not entitle him to relief.

I. Claim Nine: Lack of Probable Cause

Petitioner contends that the charges against him should have been dismissed 

because no felony complaint was filed and the police lacked probable cause to 

arrest him. Petitioner alleges that the officer who made the decision to arrest him 

failed to conduct an independent verification of the allegations and, instead, relied 

on comments made by an employee of Children’s Village. The state trial court 

concluded on post-conviction review of this claim that the victim’s allegations 
40

provided probable cause to believe Petitioner had committed criminal sexual 

conduct.

The Fourth Amendment applies to the States through the Fourteenth 

Amendment, Dunaway v. New York, 442 U.S. 200, 207 (1979), and it states that 

“[t]he right of the people to be secure in their persons . . . against unreasonable 

searches and seizures, shall not be violated, and no Warrants shall issue but upon 

probable cause . . . .” U.S. Const., amend. IV. Thus, “[i]t is abundantly clear 

that an arrest warrant is valid only if supported by probable cause.” Ahlers v. 

Schebil, 188 F.3d 365, 370 (6th Cir. 1999).

“Probable cause exists where ‘the facts and circumstances within their (the 

officers’) knowledge and of which they had reasonably trustworthy information 

(are) sufficient in themselves to warrant a man of reasonable caution in the belief 

that’ an offense has been or is being committed.” Brinegar v. United States 338 

U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 

(1925)). “[R]eliance on the statements of the victim and an eyewitness alone may 

be sufficient to establish probable cause.” Crockett v. Cumberland Coll., 316 F.3d 

571, 582 (6th Cir. 2003)). In fact, the victim’s “accusation that she had been 

sexually assaulted by [Petitioner], standing alone, was sufficient to establish 

probable cause.” Ahlers, 188 F.3d at 370.
41

Furthermore, “where the State has provided an opportunity for full and fair 

litigation of a Fourth Amendment claim, a state prisoner may not be granted 

federal habeas corpus relief on the ground that evidence obtained in an 

unconstitutional search or seizure was introduced at his trial.” Stone v. Powell, 428 

U.S. 465, 494 (1976). “[T]he Powell ‘opportunity for full and fair consideration’ 

means an available avenue for the prisoner to present his claim to the state courts, 

not an inquiry into the adequacy of the procedure actually used to resolve that 

particular claim.” Good v. Berghuis, 729 F.3d 636, 639 (6th Cir. 2013), cert. 

denied, 135 S. Ct. 1174 (2015).

“Michigan provide[s] an adequate avenue to raise a Fourth Amendment 

claim,” and Petitioner has not shown “that his claim was frustrated by a failure in 

Michigan’s Fourth-Amendment-review mechanism.” Hurick v. Woods, 672 F. 

App’x 520, 535 (6th Cir. 2016), cert. denied, 138 S. Ct. 96 (2017). For this 

additional reason, his Fourth Amendment claim lacks merit. 

J. Claim Ten: Additional Ineffective Assistance of Trial Counsel

In claim ten, Petitioner raises additional claims about his trial attorney. He 

asserts that trial counsel was ineffective for failing to investigate witnesses and 

consult with him about trial strategy.
42

1. Failure to Investigate

Defense attorneys have “a duty to make reasonable investigations or to make 

a reasonable decision that makes particular investigations unnecessary.” 

Strickland, 466 U.S. at 691. “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). But the relevant 

question is whether counsel’s choices were reasonable, id., and the Court “must 

presume that decisions of what evidence to present and whether to call or question 

witnesses are matters of trial strategy.” Cathron v. Jones, 77 F. App’x 835, 841 

(6th Cir. 2003) (citing Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002)).

Petitioner alleges that an investigation of witnesses would have revealed that 

he was not present at his father’s house when the victim was there. To support this 

claim, Petitioner relies on his father’s undated affidavit in which he states that 

Petitioner did not stay at his house when the victim stayed there overnight and that 

he would have known if Petitioner came home during the night, because he (the 

father) was always up by 4:00 a.m. The elder Mr. Pittman also states in his 

affidavit that he did not have a chance to testify at Petitioner’s trial. (See ECF No. 

8-16 at Pg ID 1310.)
43

Petitioner’s nephew makes similar statements in his affidavit. He avers that 

he never saw Petitioner at the house when the victim stayed there overnight and 

that Petitioner’s trial attorney told him that he did not have to testify. (See id. at Pg

ID 1311.)

The victim testified, however, that the crimes occurred one night when her 

grandfather and brother were sleeping and that the incident did not last a long time. 

(10/15/09 Trial Tr., Afternoon Session, at 67, 76, and 86, ECF No. 8-5 at Pg ID 

350, 359, 369.) It is possible that the incident occurred without the elder Mr. 

Pittman’s knowledge and when the nephew also was sleeping or was not present in 

the house.

Furthermore, when Petitioner informed the trial court during trial that he 

wanted defense counsel to produce his father, nephew, and brother as witnesses, 

defense counsel stated that he had interviewed those witnesses. (10/16/09 Trial Tr. 

at 95, ECF No. 8-6 at Pg ID 513.) Defense counsel went on to say that he did not 

think it was in Petitioner’s best interests to call the witnesses, that the witnesses 

would hurt the defense strategy, and that he would be neglecting his duty as 

counsel to place the witnesses on the stand. (Id. at 95-98, Pg ID 512-18.)

Petitioner’s father was ill and not available to testify that day, but 

Petitioner’s brother was in the courthouse, and, at Petitioner’s insistence, defense 
44

counsel called the brother as a witness. (Id. at 99-100., Pg ID 516-17.) At the 

conclusion of his brother’s testimony, Petitioner informed defense counsel and the 

trial court that he did not want counsel to request a continuance for the purpose of 

calling additional witnesses and that he was satisfied and prepared to rest his case. 

(Id. at 118, Pg ID 535.)

Given this record, Petitioner’s contention that defense counsel was 

ineffective for not investigating witnesses lacks merit. Defense counsel did 

interview the witnesses, he did not think they would make good witnesses, and 

Petitioner ultimately agreed with defense counsel’s strategy. The trial court’s 

rejection of Petitioner’s claim was not contrary to, or an unreasonable application 

of, Strickland.

2. Failure to Consult

Petitioner further alleges that defense counsel failed to consult him on trial 

strategy.

“[A]n attorney ‘has a duty to consult with the client regarding ‘important 

decisions,’ including questions of overarching defense strategy.’” Valenzuela v. 

United States, 217 F. App’x 486, 490 (6th Cir. 2007) (quoting Florida v. Nixon,

543 U.S. 175, 187 (2004)). Nevertheless, “this duty, and the others owed by 

counsel, do not provide a checklist for judicial evaluation of attorney 
45

performance.” Lewis v. Alexander, 11 F.3d 1349, 1353 (6th Cir. 1993) (citing 

Strickland, 466 U.S. at 688). “[C]ounsel may exercise his professional judgment 

with respect to the viability of certain defenses and evidentiary matters without 

running afoul of the Sixth Amendment.” Id. at 1353–54.

Petitioner contends that if defense counsel had consulted him, counsel would 

have learned that Petitioner had a strained relationship with the victim because he 

had intervened in an argument between the victim and her mother. The victim

testified, however, that she formerly had a close relationship with Petitioner and 

that she liked him. (10/15/09 Trial Tr., Afternoon Session, at 65, ECF No. 8-5 at 

Pg ID 348.) The victim’s mother confirmed the existence of the close relationship

between Petitioner and the victim; she also said that Petitioner had never 

disciplined the victim. (10/16/09 Trial Tr. at 10, 32, ECF No. 8-6 at Pg ID 427, 

440.) Even Petitioner’s brother testified that Petitioner and the victim got along 

fine and that there was no bad blood between the two of them. (Id. at 116, Pg ID 

533.)

Defense counsel, moreover, informed the trial court that he visited Petitioner 

five times in prison, met with Petitioner in the detention area of the courthouse, 

and was prepared for trial. (10/15/09 Trial Tr., A.M. Session, at 14-15, ECF No. 8-

5 at Pg ID 158-59.) Defense counsel also consulted Petitioner at various times 
46

during the trial, and he exercised reasonable judgment regarding the viability of 

possible defenses.

The record fails to support Petitioner’s claim that his attorney did not consult 

him on trial strategy. Thus, the trial court’s conclusion – that Petitioner had failed 

to show he was denied effective assistance of counsel – was neither contrary to, 

nor an unreasonable application of, Strickland.

K. Claim Eleven: Newly Discovered Evidence

Petitioner contends that he is entitled to a new trial on the basis of newly 

discovered impeachment evidence that the victim recanted her accusations. 

Petitioner contends that, at a minimum, an evidentiary hearing should be held to 

expand the record.

The victim’s recanting affidavit must be viewed with extreme suspicion. 

Williams v. Coyle, 260 F.3d at 708. Further, to the extent Petitioner is claiming to 

have newly discovered evidence of actual innocence, his claim fails for the 

following reasons.

“Claims of actual innocence based on newly discovered evidence have never 

been held to state a ground for federal habeas relief absent an independent 

constitutional violation occurring in the underlying state criminal proceeding.” 

Herrera v. Collins, 506 U.S. 390, 400 (1993). “This rule is grounded in the 
47

principle that federal habeas courts sit to ensure that individuals are not imprisoned 

in violation of the Constitution – not to correct errors of fact.” Id.

“To be credible, [a claim of actual innocence] requires [a] petitioner to 

support his allegations of constitutional error with 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 purports to have impeachment evidence, but impeachment 

evidence “is a step removed from evidence pertaining to the crime itself.” 

Calderon v. Thompson, 523 U.S. 538, 563 (1998). “This sort of latter-day 

evidence brought forward to impeach a prosecution witness will seldom, if ever, 

make a clear and convincing showing that no reasonable juror would have believed 

the heart of [the witness’s] account of petitioner’s actions.” Sawyer v. Whitley, 505 

U.S. 333, 349 (1992).

The Court concludes that Petitioner has fallen short of making the threshold 

showing for a claim of actual innocence. Accordingly, the Court rejects his claim

of newly discovered evidence.

L. Claim Twelve: Ineffective Assistance of Appellate Counsel

In his twelfth and final claim, Petitioner alleges that he was denied his right 

to effective assistance of appellate counsel. Petitioner contends that appellate 
48

counsel was ineffective for failing to raise his claims about the trial court’s rulings, 

jury instructions, and sentence, the prosecutor’s conduct, and the alleged lack of 

probable cause. The trial court determined on post-conviction review that 

appellate counsel was not ineffective for failing to raise all of petitioner’s claims 

on appeal, and that Petitioner was not prejudiced by counsel’s performance.

Claims of ineffective assistance of appellate counsel are governed by the 

same Strickland standard as claims of ineffective assistance of trial counsel. 

Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010). To prevail on his claim, 

Petitioner “must show that his [appellate] counsel’s performance was deficient and 

that he was prejudiced as a result.” Id. (citing Strickland, 466 U.S. at 687). This 

requires demonstrating (1) that his attorney acted unreasonably in failing to 

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

probability he would have prevailed on appeal if his attorney had raised the issues. 

Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (citing Strickland, 466 U.S. at 687-

91, 694).

For the reasons given in this opinion, Petitioner’s underlying claims about 

the trial court, the prosecutor, his arrest, and trial counsel are meritless. “[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), and because 
49

there is not a reasonable probability that Petitioner would have prevailed on appeal 

if his appellate attorney had raised all his claims, Petitioner has failed to show that 

he was prejudiced by his attorney’s performance. The state trial court’s rejection

of Petitioner’s claim about appellate counsel was neither contrary to, nor an 

unreasonable application of, Strickland or Smith v. Robbins.

V. CONCLUSION, DENIEAL OF CERTIFICATE OF 

APPEALIABILITY AND LEAVE TO PROCEED IN FORMA 

PAUPERIS

For the reasons set forth above, this Court holds that the state courts’ 

rejection of Petitioner’s claims was neither contrary to Supreme Court precedent, 

an unreasonable application of Supreme Court precedent, nor an unreasonable 

application of the facts. The state courts’ decisions also were not “so lacking in 

justification that there was an error . . . beyond any possibility for fairminded 

disagreement.” Richter, 562 U.S. at 103. Accordingly, the Court is denying 

Petitioner’s request for habeas relief under § 2254.

Before Petitioner may appeal this decision, he must 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). “A petitioner satisfies 

this standard by demonstrating that jurists of reason could disagree with the district 
50

court’s resolution of his constitutional claims or that jurists could conclude the 

issues presented are adequate to deserve encouragement to proceed further.” 

Miller-El, 537 U.S. at 327.

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

claims, nor conclude that the issues deserve encouragement to proceed further. 

The Court, therefore, declines to issue a certificate of appealability.

Nevertheless, because Petitioner was granted in forma pauperis status in this 

Court, he may proceed in forma pauperis on appeal without further authorization 

from this Court. Fed. R. App. P. 24(a)(3).

Accordingly,

IT IS ORDERED that the petition for writ of habeas corpus (ECF No. 1) is 

DENIED.

IT IS FURTHER ORDERED that a certificate of appealability is 

DENIED.

IT IS FURTHER ORDERED that Petitioner may proceed in forma 

pauperis on appeal.

Dated: February 6, 2018 s/Linda V. Parker

U.S. District Court Judge
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CERTIFICATE OF SERVICE

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

record on February 6, 2018, by electronic and/or ordinary mail.

s/Julie Owens acting in the absence of Richard Loury

Case Manager