UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

KARL F. VINSON, 

 Petitioner, Case No. 14-cv-14542 

v Honorable Thomas L. Ludington 

THOMAS MACKIE, 

 

 Respondent. 

__________________________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS 

CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND 

GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

 Petitioner Karl Vinson, presently confined at the Carson City Correctional Facility in 

Carson City, Michigan, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 

2254. In his application, filed through his attorneys, David A. Moran and Imran J. Syed of the 

Michigan Innocence Clinic, petitioner challenges his conviction for first-degree criminal sexual 

conduct (CSC), Mich. Comp. Laws § 750.520(b)(1)(a)(victim under 13 years of age), and 

breaking and entering a building with the intent to commit a felony (CSC) therein, Mich. Comp. 

Laws § 750.110. For the reasons which follow, the petition for a writ of habeas corpus will be 

denied pursuant to 28 U.S.C.§ 2244(b)(4). 

I. 

A.

The relevant facts of Petitioner’s conviction were outlined by the Michigan Court of 

Appeals, which are presumed correct on habeas review pursuant to 28 U.S.C. § 2254(e)(1). See 

Wagner v. Smith, 581 F.3d 410, 413 (6th Cir. 2009): 

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This matter arises from the brutal rape of a nine-year-old female victim in her 

own bed. The victim was asleep when she awoke to find a man in her bedroom. 

She indicated that she was able to see his facial features because lights, both 

within the home and outside, provided illumination within the room. The victim 

identified Vinson, claiming that she had seen him previously and she recognized 

his voice, although she could not immediately recall his name. She was further 

able to identify Vinson as her assailant because she was familiar with him since 

his wife had babysat her and her younger sister. Vinson’s mother and her 

husband provided an alibi for him at trial, indicating that he was sleeping on their 

couch at the time of the assault. 

Following the assault, the victim was taken to the hospital. She experienced a 

bloody discharge and a deep cut requiring surgical repair. A specimen of vaginal 

secretions was obtained from the victim revealing the presence of nonmoving 

sperm; however, the specimen was not provided for forensic testing. 

Fingerprints were not able to be recovered from the window casing where the 

perpetrator entered the victim’s bedroom. The victim’s bed sheet, containing a 

“kind of wet” bloodstain, was taken into evidence. The bed sheet was examined 

by Sergeant Ronald Badascewski of the Crime Lab Serology and Trace Evidence 

Unit. Sergeant Badascewski performed an acid phosphatase test on the stained 

area with a positive result for blood and seminal fluid. After washing the stain 

from the portion of the sheet, Sergeant Badascewski placed the washing on a 

microscope slide and found one complete sperm. He then turned over a portion of 

the stain to Paula Lytle, a registered medical technologist, in order to determine 

the blood type of the stained area. Lytle detected the presence of blood type O 

from the sample, which was consistent with the victim. At trial, Lytle 

acknowledged that she only received one sample from the bed sheet stain and that 

she did not receive the sperm recovered by Sergeant Badascewski for testing. 

When questioned by the prosecutor, Lytle opined that the sample she examined 

contained a mixture or combination of blood and seminal fluid. 

Lytle also obtained a blood and saliva sample from the victim and determined that 

her blood type was O and that she was a secretor. A secretor is defined as: 

An individual whose bodily fluids (saliva, semen, vaginal 

secretions) contain a water-soluble form of the antigens of the 

ABO blood group. Secretors constitute 80% of the population. In 

forensic medicine, the examination of fluids has enhanced the 

ability of law enforcement officials to develop identifying 

information about perpetrators and narrow a field of suspects. [See 

mediLexicon, http://www.medi 

lexicon.com/medicaldictionary.php?t=80515 (accessed May 24, 

2012).] 

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Blood and saliva samples were also obtained from Vinson. Lytle determined at 

that time that Vinson’s blood type was AB and that he was a nonsecretor, defined 

as “[a]n individual [whose bodily fluids] and saliva that do[ ] not contain antigens 

of the ABO blood group.” Id. 

During closing argument at trial, the prosecutor stated that the bed sheet contained 

a mixture of blood and seminal fluid and argued that the stain came from Vinson 

and the victim. The prosecution stated that Vinson was a nonsecretor “along with 

20 percent of the population.” The implication of this statement was that 

Vinson’s status as a nonsecretor explained the absence of any detectable AB 

antigens from the stained bed sheet. The prosecutor also noted that the victim 

knew Vinson and had no motivation to lie regarding his identity as the perpetrator 

and questioned the veracity of Vinson’s alibi defense. 

Although the jury initially requested the testimony of all the expert witnesses, 

they rescinded the request and subsequently found Vinson guilty of first-degree 

CSC and breaking and entering. Along with the denial of Vinson’s initial appeal 

to this Court following his convictions, he also subsequently filed three motions 

for relief from judgment and a federal petition for habeas corpus, all of which 

were unsuccessful. Vinson later learned that the physical evidence, including the 

bed sheet, was destroyed by police. In 2009, Vinson obtained retesting and 

analysis confirmed that his blood type is AB. Contrary to the evidence at trial, the 

2009 analysis revealed that Vinson actually is a secretor. These results were 

confirmed by an independent laboratory. 

In September 2009, Vinson again sought relief from judgment premised on 

prosecutorial misconduct, ineffective assistance by his trial and appellate counsel, 

and newly discovered evidence of his status as an AB secretor. The matter came 

back before the original trial judge, who questioned the ability to demonstrate 

Vinson’s innocence. The trial judge speculated that Vinson could have been 

using a condom at the time of the assault, but defense counsel responded that, at 

trial, the prosecution had argued that the semen had come from the rapist. The 

trial judge ordered the Michigan State Police (MSP) to determine Vinson’s blood 

type and secretor status, and on August 20, 2010, the MSP report confirmed that 

Vinson is an AB secretor of ABO antigens. 

At the ensuing evidentiary hearing, Lytle was called to testify. Following her 

confirmation of her trial testimony along with the testing originally conducted and 

results, she acknowledged recent testing demonstrating Vinson’s secretor status. 

Following questioning, Lytle opined that testing on a semen stain differed from 

the testing performed on a blood stain to determine blood type. Lytle affirmed 

that the sample tested contained a mixture of semen and blood and, when asked 

where the type O in the stain originated, Lytle replied that it could not have come 

from Vinson, but that it could have come from the semen donor and/or the victim. 

Further, if the type O detected in the stain originated from the victim, then it 

would have come from her bodily fluid and not her blood. Lytle further opined, 

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on the basis of the results obtained through the acid phosphatase test performed 

by Sergeant Badascewski, that there was a very high presence of semen in the 

stain that she tested. She deemed it unlikely that the victim, due to her young age, 

would have vaginal secretions. Lytle confirmed that she did not detect any AB 

antigenic substances. 

On cross-examination, Lytle acknowledged she did not test the “exact same piece 

of material” that Sergeant Badascewski tested and detected the presence of 

seminal fluid. As Lytle did not repeat the test performed by Sergeant 

Badascewski or examine the section of the bed sheet she received for sperm cells, 

she could not determine if the material she received contained semen. Lytle 

further admitted that she might have cut additional samples from the bed sheet 

and performed additional testing had she known Vinson’s status as a secretor. 

Upon questioning by the trial judge, Lytle indicated that she had originally 

testified that Vinson was a nonsecretor and that she now believed that the O 

antigen detected could have been from a male donor of the semen. When asked if 

she had known Vinson was a secretor during the original trial, Lytle indicated she 

“would testify that his blood type was not detected ... and he could not be the 

donor of the O substance in that stain.” 

Additional hearings were conducted, with defense counsel presenting Arthur 

Young, an expert in forensic serology, who confirmed Vinson’s status as an 

“ABO type AB secretor” and that Vinson was a “very strong secretor.” Young 

further testified that he would have expected semen to be mixed in with the blood 

on the bed sheet and that the O antigens detected were more probably from semen 

rather than the victim’s vaginal secretions. In contrast, the prosecution’s witness 

Connie Swander of the MSP laboratory indicated that it was possible that the O 

antigen detected was derived from the victim’s blood. Swander opined that the 

only known fact was the presence of an O antigen but that its origin could not be 

ascertained. She further opined that, despite the victim’s young age, vaginal fluid 

could be in the stain. Swander did admit that she could not rule out the possibility 

that the blood type of the perpetrator of the assault was O. 

People v. Vinson, No. 303593, 2012 WL 3046236, at *1-3, (Mich. Ct. App. July 26, 2012). 

After holding the post-conviction hearing, the trial court denied petitioner’s motion for 

relief from judgment, finding: 

But the question is, would this new evidence have caused a different result? Now, 

that’s what I understand the standard is. 

That young lady’s identification the -- only thing that the scientific evidence 

would have done would have bolstered her testimony. And in this case, I don’t 

think anybody could conclude. And as I remember Paula Lytle testifying here 

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recently, nobody could say that that was from the rapist. I don’t remember her 

saying that. 

And this Court is not convinced that it would cause a different result in this case. 

And because of that, I’m going to deny your motion. 

See 3/28/2011 Tr. P. 40, ECF No. 5-25. 

 In response to the denial Petitioner filed a motion for leave to appeal to the Michigan 

Court of Appeals. The Michigan Court of appeals denied Petitioner’s motion upon finding that 

the new evidence “does not serve to establish Vinson’s ‘actual innocence.’” People v. Vinson, 

No. 303593, 2012 WL 3046236, at * 1, 7, (Mich. Ct. App. July 26, 2012). The Michigan 

Supreme Court also denied Petitioner leave to appeal. See People v. Vinson, 843 N.W.2d 493 

(Mich. 2014); reconsideration denied, 847 N.W.2d 241 (Mich. 2014). 

B. 

 In 2014, Petitioner filed a motion with the United States Court of Appeals for the Sixth 

Circuit for permission to file a second or successive petition. In this proposed successive 

petition, Petitioner presented five claims: (1) that his trial counsel was ineffective for failing to 

hire his own expert to test Petitioner’s secretor status; (2) that his appellate counsel was 

ineffective for failing to raise the first claim on direct appeal; (3) that his trial counsel was 

ineffective for failing to adequately cross-examine the State’s forensic witness; (4) that his 

appellate counsel was ineffective for failing to raise the inadequate-cross-examination claim on 

direct appeal; and (5) that Petitioner is actually innocent. 

 The Sixth Circuit authorized Petitioner Vinson to file a second petition based on his 

claims that his trial counsel was ineffective for failing to adequately cross-examine the State’s 

forensic witness, that his appellate counsel was ineffective for failing to raise the inadequatecross-examination claim on direct appeal, and that he is actually innocent. See In Re Karl Vinson, 

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No. 14-2521, * 4-6 (6th Cir. Sept. 24, 2015). The Sixth Circuit denied Petitioner permission to 

seek habeas relief on his first two claims because he had already raised them in his prior habeas 

petition. Id. at *4, 6. 

 In response Petitioner filed the current § 2254 petition on December 1, 2014, asserting all 

five of his proposed claims, including the two that the Sixth Circuit did not authorize him to file. 

See ECF Nos. 1-2. On April 13, 2016 Respondent filed its response through the Attorney 

General’s Office, arguing that Petitioner’s claims are barred by 28 U.S.C. § 2244(b)(4), are timebarred, procedurally defaulted and/or lack merit. 

II. 

 Petitioner’s successive habeas petition will be dismissed pursuant to 28 U.S.C. § 

2244(b)(4) because his claims fail to satisfy the requirements for filing a second or successive 

habeas petition. In relevant part, § 2244(b)(2) provides: 

A claim presented in a second or successive habeas corpus application under 

section 2254 that was not presented in a prior application shall be dismissed 

unless-- 

(A) the applicant shows that the claim relies on a new rule of constitutional law, 

made retroactive to cases on collateral review by the Supreme Court, that was 

previously unavailable; or 

(B)

(i) the factual predicate for the claim could not have been discovered 

previously through the exercise of due diligence; and 

(ii) the facts underlying the claim, if proven and viewed in light of the 

evidence as a whole, would be sufficient to establish by clear and 

convincing evidence that, but for constitutional error, no reasonable 

factfinder would have found the applicant guilty of the underlying 

offense. 

In granting Petitioner leave to file his successive habeas petition, the Sixth Circuit 

determined that petitioner had made a prima facie showing that the application satisfied the 

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requirements of 28 U.S.C. § 2244. See Ferrazza, 36 F. Supp. 2d at 973. “‘Prima facie’ in this 

context means simply sufficient allegations of fact together with some documentation that would 

warrant a fuller exploration in the district court.” In re Lott, 366 F.3d 431, 433 (6th Cir. 2004) 

(internal quotation omitted). Such a “‘prima facie showing’ ... is not a difficult standard to 

meet.” Id. at 432. 

 28 U.S.C. § 2244(b)(4) requires a district court to “dismiss any claim presented in a 

second or successive application that the court of appeals has authorized to be filed unless the 

applicant shows that the claim satisfies the requirements of this section.” See In re McDonald,

514 F.3d 539, 543 (6th Cir. 2008). Even after a court of appeals has certified a successive 

motion on the basis that the movant has made a prima facie showing that the statutory standard 

of § 2244(b) has been satisfied, it is appropriate for a district court to dismiss the petition or 

motion if the merits of the successive petition or motion do not ultimately satisfy that same 

statutory standard under § 2244(b). See Tyler v. Cain, 533 U.S. 656, 661, n. 3 (2001). 

Petitioner’s petition does not satisfy these requirements. 

A. 

Petitioner’s first two claims must be dismissed because they have not been certified by 

the Sixth Circuit. Before a second or successive habeas petition is filed in a federal district court, 

a habeas petitioner must move in the appropriate court of appeals for an order authorizing the 

district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); Stewart v. Martinez-Villareal, 

523 U.S. 637, 641 (1998). A federal district court does not have jurisdiction to entertain a 

successive post-conviction motion or petition for writ of habeas corpus in the absence of an order 

from the court of appeals authorizing the filing of such a successive motion or petition. See

Ferrazza v. Tessmer, 36 F. Supp. 2d 965, 971 (E.D. Mich. 1999). 

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 In the present case, the Sixth Circuit has granted the petitioner permission to file his 

second petition pursuant to § 2244(b)(3)(A) with respect to claims three, four and five contained 

within the Sixth Circuit Court of Appeal’s order. See (9/24/15, Sixth Cir. Ord., Docket No. 14-

2521, p. 4.). On the other hand, the Sixth Circuit denied Petitioner leave to restate claims that 

trial counsel was ineffective for failing to obtain an expert to test the petitioner’s secretor status 

and that appellate counsel was ineffective for failing to raise this claim on the petitioner’s direct 

appeal. The Court therefore does not have jurisdiction to hear those claims, and they must be 

dismissed. See White v. Carter, 27 F.App’x. 312, 313-14 (6th Cir. 2001). 

B. 

 Petitioner also raises two claims asserting that his trial counsel was ineffective for failing 

to cross-examine the prosecution’s forensic witness and that his appellate counsel was ineffective 

for failing to raise this issue on his direct appeal. To show he was denied the effective assistance 

of counsel under federal constitutional standards, a petitioner must satisfy a two prong test. First, 

a petitioner must demonstrate that, considering all of the circumstances, counsel’s performance 

was so deficient that the attorney was not functioning as the “counsel” guaranteed by the Sixth 

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). In so doing, a petitioner must 

overcome a strong presumption that counsel’s behavior lies within the wide range of reasonable 

professional assistance. Id. In other words, a petitioner must overcome the presumption that, 

under the circumstances, the challenged action might be sound trial strategy. Strickland, 466 U.S. 

at 689. Second, a petitioner must show that such performance prejudiced his defense. Id. To 

demonstrate prejudice, a petitioner must show that “there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. The Supreme Court’s holding in Strickland thus places the burden 

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on a petitioner raising a claim of ineffective assistance of counsel, and not the state, to show a 

reasonable probability that the result of the proceeding would have been different, but for 

counsel’s allegedly deficient performance. See Wong v. Belmontes, 558 U.S. 15, 27 (2009). The 

Strickland standard applies as well to claims of ineffective assistance of appellate counsel. See 

Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). 

 Furthermore, on habeas review, “the question is not whether a federal court believes the 

state court’s determination under the Strickland standard was incorrect but whether that 

determination was unreasonable – a substantially higher threshold.” Knowles v. Mirzayance, 556 

U.S. at 123 (internal quotations omitted). “The pivotal question is whether the state court’s 

application of the Strickland standard was unreasonable. This is different from asking whether 

defense counsel’s performance fell below Strickland’s standard.” Harrington v. Richter, 562 

U.S. 86, 101 (2011). Indeed, “because the Strickland standard is a general standard, a state court 

has even more latitude to reasonably determine that a defendant has not satisfied that standard.” 

Knowles, 556 U.S. at 123. Consequently, the § 2254(d)(1) standard applies a “doubly deferential 

judicial review” to a Strickland claim brought by a habeas petitioner. Id. This means that on 

habeas review of a state court conviction, “[a] state court must be granted a deference and 

latitude that are not in operation when the case involves review under the Strickland standard 

itself.” Harrington, 562 U.S. at 101. Because of this doubly deferential standard, “the question 

is not whether counsel’s actions were reasonable. The question is whether there is any 

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

Richter, 562 U.S. at 105. A reviewing court must not merely give defense counsel the benefit of 

the doubt, but must also affirmatively entertain the range of possible reasons that counsel may 

have had for proceeding as he or she did. Cullen v. Pinholster, 131 S. Ct. 1388, 1407 (2011). 

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 Petitioner claims that his trial counsel was ineffective for failing to adequately crossexamine laboratory specialist Paula Lytle at trial. Petitioner specifically claims that his trial 

attorney should have asked Lytle who she believed was the most likely donor of the O-type 

antigens in the stain, and alleges that, if asked this question, Lytle would have responded that 

“the rapist” was the most likely source of the O-type antigens in the stain. Petitioner further 

argues that because he has an AB blood-type, and there was only one perpetrator in this case, he 

believes that asking this one question would have led the jury to exonerate him. Petitioner relies 

on Lytle’s post-conviction evidentiary hearing testimony in support of his claim. 

However, as respondent argues in his brief, the hearing testimony did not confirm his 

assertion that, if asked, Lytle would have testified that “the rapist” was definitively the source of 

the O-type antigen. The colloquy at issue is as follows: 

Q: And in fact, at the time, it was likely that it was an O secretor who left that 

sample; is that right? 

A: I believe it was definitely an O secretor, the donor of the semen and/or the 

victim showing up in there. 

Q: But given the acid phosphate test results, it’s likely that the rapist in this case 

was an O secretor; is that fair to say? 

A: With the strong AP reaction, then I would suspect I am picking up, you know, 

some type from the donor of the sperm. 

Q: And if you were asked these questions at the original trial, you would have 

explained all that, wouldn’t you have? 

A: Yes. 

Q: But none of the attorneys asked you about any of that, did they? 

A: No they did not. 

9/21/10 Tr. at 30-31, ECF No. 5-18 (emphasis added). 

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 “[C]ourts generally entrust cross-examination techniques, like other matters of trial 

strategy, to the professional discretion of counsel.” Dell v. Straub, 194 F. Supp. 2d 629, 651 

(E.D. Mich. 2002). “Impeachment strategy is a matter of trial tactics, and tactical decisions are 

not ineffective assistance of counsel simply because in retrospect better tactics may have been 

available.” Id. 

 Petitioner has not demonstrated that trial counsel was ineffective for failing to ask Ms. 

Lytle who she believed was the most likely donor of the O-type antigens in the stain, because he 

has failed to show that she would have given an exculpatory response. Ms. Lytle testified at the 

post-conviction hearing that the O-type antigen could have come from either the rapist or the 

victim. Id. The victim has O-type blood and is an O-type secretor. Connie Swander, Acting 

Assistant Division Director in charge of the Michigan State Police forensic science laboratories, 

testified that the O-type antigens detected in the stain could have come from the victim’s red 

blood cells, vaginal fluid, saliva, urine, or any other bodily fluids or cells from her body. See 

12/3/31 Tr. 28-36, ECF No. 5-20. Finally, the portion of the bed sheet that Sergeant Badascewski 

provided to Lytle was different from the section he tested for the presence of semen, and Lytle 

did not sample for seminal fluid before conducting the test to determine blood type. 

 Petitioner’s ineffective assistance of trial counsel claim must fail, because even if counsel 

was deficient in failing to ask Ms. Lytle to speculate about the likely donor of the O-type antigen 

on the bed sheet, Petitioner has failed to demonstrate any reasonable probability, based on the 

evidence presented at trial and at the post-conviction hearing, that the cross-examination of this 

witness by defense counsel would have changed the result of the proceeding. Moss v. Hofbauer, 

286 F.3d 851, 866 (6th Cir. 2002). Indeed, it is equally as likely that Petitioner’s trial counsel 

intentionally chose not to ask the question to avoid a response that was not helpful to Petitioner. 

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 Just as Petitioner has not shown that trial counsel was ineffective for failing to crossexamine Ms. Lytle about who the donor of the O-type antigens was in the stain recovered from 

the crime scene, Petitioner has not shown that his appellate counsel was ineffective for failing to 

raise the claim on direct appeal. The Sixth Amendment guarantees a defendant the right to the 

effective assistance of appellate counsel on appeals of right. See Evitts v. Lucey, 469 U.S. 387, 

396-397 (1985). However, court appointed counsel does not have a constitutional duty to raise 

every nonfrivolous issue requested by a defendant. Jones v. Barnes, 463 U.S. 745, 751 (1983). 

Because Petitioner has failed to show that his trial counsel was ineffective, Petitioner is unable to 

establish that appellate counsel was ineffective for failing to raise his ineffective assistance of 

trial counsel claim on his direct appeal. See e.g. Fautenberry v. Mitchell, 515 F.3d 614, 642 (6th 

Cir. 2008); Lucas v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999). 

C. 

 Finally, Petitioner alleges that his continued incarceration is unconstitutional because he 

is actually innocent. Petitioner asserts that he is entitled to relief on this claim because there is 

new evidence that could not have been previously discovered through the exercise of due 

diligence. Specifically, Petitioner claims that evidence shows that he is a Type-AB secretor, and 

therefore it is “all but scientifically impossible that [he] could have been the perpetrator of the 

crimes for which he was convicted.” See Memorandum in Support of Petition for Writ of Habeas 

Corpus, p. 22, ECF No. 2. 

i. 

 In Herrera v. Collins, 506 U.S. 390, 400 (1993), the Supreme Court held that claims of 

actual innocence based on newly discovered evidence fail to state a claim for federal habeas 

relief absent an independent constitutional violation occurring in the underlying state criminal 

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proceeding. Federal habeas courts sit to ensure that individuals are not imprisoned in violation 

of the constitution, not to correct errors of fact. Id., see also McQuiggin v. Perkins, 133 S. Ct. 

1924, 1931 (2013) (“We have not resolved whether a prisoner may be entitled to habeas relief 

based on a freestanding claim of actual innocence.”). Freestanding claims of actual innocence 

are thus not cognizable on federal habeas review, absent independent allegations of 

constitutional error at trial. See Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007)(collecting 

cases). 

 Moreover, the Supreme Court’s subsequent decision in House v. Bell, 547 U.S. 518 

(2006) does not alter this Court’s adjudication of Petitioner’s claim, as Petitioner argues. In 

House the Supreme Court declined to resolve whether a habeas petitioner may bring a 

freestanding claim of actual innocence. Id. at 554-55. Although the Supreme Court noted in 

House that “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after 

trial would render the execution of a defendant unconstitutional, and warrant federal habeas 

relief if there were no state avenue open to process such a claim,” Id. (quoting Herrera, 506 U.S. 

at 417), the Supreme Court has declined to recognize a freestanding innocence claim in habeas 

corpus, outside of the death-penalty context. Petitioner is thus not entitled to relief for his 

freestanding actual innocence claim. See Wright v. Stegall, 247 F.App’x. 709, 711 (6th Cir. 

2007). 

ii. 

Even considering the merits of Petitioner’s actual innocence claim does not entitle him to 

any relief. In rejecting Petitioner’s actual innocence claim in his post-conviction appeal, the 

Michigan Court of Appeals stated as follows: 

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The burden is on Vinson, “on all parts of the Cress test,2

 ... to make an affirmative 

showing that [he] “could not, using reasonable diligence, have discovered and 

produced the evidence at trial[.]” Rao, 491 Mich. at 289, 3

 citing Cress, 468 Mich. 

at 692. As our Supreme Court noted, even if a defendant is not aware “of the 

actual medical information” it “begs the question why defendant lacked 

awareness at the time of trial[.]” Rao, 491 Mich. at 287 (emphasis in original). If 

testing of his secretor status was as pivotal at trial as is now claimed on appeal, 

reasonable diligence would have required, at the very least, that Vinson request 

independent laboratory testing. Id. at 290. He was certainly aware of the 

evidence, the manner of testing, and that results contrary to those obtained by the 

prosecution’s witness could have provided him with support for his defense that 

he was not the perpetrator. Yet, Vinson fails to offer any viable reason to explain 

why he did not seek independent testing at the time of trial. When viewed in the 

context of reasonable diligence, Vinson should have minimally procured 

independent testing or sought the trial court’s assistance in procuring such testing. 

“Michigan courts have held that a defendant’s awareness of the evidence at the 

time of trial precludes a finding that the evidence is newly discovered, even if the 

evidence is claimed to have been ‘unavailable’ at the time of trial.” Id. at 282. 

Additionally, not only were elements one and three not satisfied, but we also hold 

that this new evidence would not make a different result probable on remand. 

Our review of the original trial transcripts does not support Vinson’s contention 

that the prosecution’s case hinged on the forensic evidence. Rather, the 

prosecutor placed significant emphasis on the victim’s identification of Vinson as 

the perpetrator of the rape. In actuality, very little testimony was elicited 

regarding Vinson’s alleged status as a nonsecretor and its possible relationship to 

the physical evidence. 

It is necessary to recognize that we are not concerned with how the alleged new 

evidence would have impacted the jury’s determination at the original trial. 

Rather, we are required to determine whether the evidence of Vinson’s status as a 

secretor would make a different result probable upon retrial. Lytle acknowledged 

at the evidentiary hearing that she was uncertain whether the material or sample 

she tested actually contained seminal fluid. The portion of the bed sheet that 

Sergeant Badascewski provided to Lytle was different from the section he tested, 

and Lytle did not sample for seminal fluid before conducting the test to determine 

blood type. The intact sperm sample that Sergeant Badascewski recovered was 

never tested. In addition, we cannot ignore that the victim positively identified 

Vinson as the rapist on the basis of her prior familiarity with him and her ability 

to observe him during the assault and identify his features and voice. This 

identification is not refuted by the scientific evidence as it is no longer possible to 

 

2

 People v. Cress, 468 Mich, 678, 664 N.W. 2d 174 (2003). 

3

 People v. Rao, 491 Mich. 271, 815 N.W. 2d 105 (2012). 

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ascertain with certainty what substance in the sample resulted in the detection of 

the O antigen. 

Vinson, 2012 WL 3046236, at *6. 

 Petitioner’s contention that his status as a secretor constitutes newly discovered evidence 

is unfounded for the reasons stated by the Michigan Court of Appeals. Specifically, Petitioner 

cannot show that he exercised reasonable diligence because, at the time of trial, he knew of the 

evidence, the manner of testing, and that any findings contrary to the results obtained by the 

prosecution’s witness would “have provided him with support for his defense that he was not the 

perpetrator.” Vinson, 2012 WL 3046236, at *6. Petitioner’s claim of newly discovered evidence 

is thus without merit. 

Furthermore, the evidence does not demonstrate Petitioner’s actual innocence. Because 

“[t]he portion of the bed sheet that Sergeant Badascewski provided to Lytle was different from 

the section he tested, and Lytle did not sample for seminal fluid before conducting the test to 

determine blood type” and due to the possibility that the O antigen came from the victim, 

Petitioner’s contention that it is scientifically impossible for a reasonable trier of fact to find that 

he was is perpetrator of the crime is unfounded. Lytle determined that there were O-type 

antigens present in the stain, indicating that the non-blood fluids came from a person with O-type 

blood. 9/21/2010 Tr. p. 28, ECF No. 5-18. Such secretions would include saliva, vaginal 

secretions, perspiration, and tears. Id. at 29. Lytle did not test for sperm Id. at 25. It is 

undisputed that the victim has O-type blood and is an O-type secretor. See Trial Tr. pp. 75-76, 

ECF No. 4. Connie Swander, Acting Assistant Division Director in charge of the Michigan State 

Police forensic science laboratories, testified that, based on the testing performed in 1986 by 

Lytle, the O-type antigens detected in the stain could have come from the victim’s red blood 

cells, vaginal fluid, saliva, urine, or any other bodily fluids or cells from her body. 12/3/2010 Tr. 

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pp. 35-37, ECF No. 5-20. Because the O antigens could have come from the victim, Petitioner’s 

AB secretion status does not rule him out as the perpetrator of the crime. 

Furthermore, the trial court placed great emphasis on the compelling testimony of the 

victim in finding support for the petitioner’s convictions, and “the testimony of a single, 

uncorroborated prosecuting witness or other eyewitness is generally sufficient to support a 

conviction.” Brown v. Davis, 752 F.2d 1142, 1144 (6th Cir. 1985) (internal citations omitted). 

Here, the victim specifically identified Petitioner as her attacker, testifying that she had seen him 

previously, that she recognized his voice, and that she was familiar with him since his wife had 

babysat her and her younger sister. See People v. Vinson, No. 303593, 2012 WL 3046236, at *1 

(Mich. Ct. App. July 26, 2012). Finally, any actual innocence claim is undercut by Petitioner’s 

own admissions to his prison psychologist that he had sexual contact with the victim on a 

different occasion. See Psych. Rep., ECF No. 15. 

For all of these reasons, Petitioner’s actual innocence claim is without merit. 

III. 

 Before a petitioner may appeal this Court’s dispositive decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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). When a court rejects a habeas claim on the merits, 

the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists 

would find the district court’s assessment of the constitutional claim debatable or wrong. See 

Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). “A petitioner satisfies this standard by 

demonstrating that ... jurists could conclude the issues presented are adequate to deserve 

encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying 

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that standard, a district court may not conduct a full merits review, but must limit its examination 

to a threshold inquiry into the underlying merit of the petitioner’s claims. Id. at 336-37. 

When a court denies relief on procedural grounds without addressing the merits, a 

certificate of appealability should issue if it is shown that jurists of reason would find it debatable 

whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of 

reason would find it debatable whether the court was correct in its procedural ruling. Slack v. 

McDaniel, 529 U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district 

court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either 

that the district court erred in dismissing the petition or that the petition should be allowed to 

proceed further. In such a circumstance, no appeal would be warranted. Id. 

 Having considered the matter, the Court concludes that Petitioner has failed to make a 

substantial showing of the denial of a constitutional right. Accordingly, a certificate of 

appealability is not warranted in this case. On the other hand, Petitioner will be granted leave to 

appeal in forma pauperis. Whereas a certificate of appealability may only be granted if petitioner 

makes a substantial showing of the denial of a constitutional right, a court may grant IFP status if 

it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. 

R.App.24 (a). “Good faith” requires a showing that the issues raised are not frivolous; it does 

not require a showing of probable success on the merits. Foster, 208 F. Supp. 2d at 765. 

Although jurists of reason would not debate this Court’s resolution of Petitioner’s claims, the 

issues are not frivolous; therefore, an appeal could be taken in good faith and the petitioner may 

proceed in forma pauperis on appeal. Id. 

IV. 

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 Accordingly, it is ORDERED that Petitioner’s petition for a writ of habeas corpus is 

DENIED.

It is further ORDERED that a certificate of appealability is DENIED.

It is further ORDERED that Petitioner is GRANTED LEAVE to appeal in forma 

pauperis.

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: December 6, 2016 

 

PROOF 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 December 6, 2016. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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