UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

Sedrick Mitchell, 

Petitioner, 

v. 

Jeffrey Woods, 

Respondent. 

________________________________/

Case No. 15-cv-10764 

Judith E. Levy 

United States District Judge 

Mag. Judge Anthony P. Patti 

OPINION AND ORDER DENYING THE PETITION FOR A WRIT 

OF HABEAS CORPUS [1], DENYING A CERTIFICATE OF 

APPEALABILITY, AND DENYING LEAVE TO PROCEED IN 

FORMA PAUPERIS ON APPEAL 

 This is a habeas case brought by a Michigan prisoner under 28 

U.S.C. ' 2254. After a jury trial in Wayne County Circuit Court, 

Petitioner Sedrick Mitchell was convicted of one count of forced labor 

involving criminal sexual conduct, MICH. COMP. LAWS ' 750.520b(1)(f), 

two counts of first-degree criminal sexual conduct, MICH. COMP. LAWS

' 750.520b(1)(b), one count of pandering, MICH. COMP. LAWS ' 750.455, 

two counts of accepting earnings from a prostitute, MICH. COMP. LAWS

' 750.457, and one count of conducting a criminal enterprise. MICH.

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COMP. LAWS ' 750.159i(1). Petitioner was sentenced as a third-time 

habitual felony offender to a series of concurrent terms, with the longest 

being terms of thirty-five to sixty years for the criminal sexual conduct 

offenses. 

Read in the light most favorable to Petitioner, the pro se petition 

appears to raise nine claims: (1) Petitioner was denied the effective 

assistance of counsel at trial (Dkt. 1 at 4); (2) Petitioner’s sentence 

constitutes cruel and unusual punishment (id. at 14); (3) the prosecutor 

violated Petitioner’s due process rights by amending the criminal 

information (id. at 15); (4) the trial court erroneously instructed the jury 

(id. at 21); (5) the prosecutor committed misconduct (id. at 25); (6) the 

victims are not entitled to restitution (id. at 28); (7) Petitioner’s right to 

be free from double jeopardy was violated by multiple convictions 

resulting from a single sexual penetration (id. at 30); (8) there was 

insufficient evidence presented at trial to sustain the criminal sexual 

conduct convictions (id. at 10-13); and (9) the trial court incorrectly 

scored the sentencing guidelines. (Id. at 16-17.) 

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For the reasons set forth below, Petitioner’s claims are denied 

because they are without merit. Petitioner is also denied a certificate of 

appealability and leave to proceed in forma pauperis on appeal. 

I. Background 

This Court recites verbatim the relevant facts relied on by the 

Michigan Court of Appeals, which this Court must presume are 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). 

In July 2010, C. M. left the home of her grandmother 

because she was over protective. C. M. learned of defendant 

through a friend and contacted him. He took her to a home 

near Eastland Mall and engaged in sex with her. Initially, 

he sent her to live in a drug house with a 19-year old male. 

Then, he began to establish prostitution customers for C. M. 

and another girl named “Rosie” that occurred in homes. 

However, in early August 2010, Rosie left defendant. 

Defendant explained that he wanted C. M. to make more 

money in light of Rosie’s departure, and he took C. M. to 

work on the streets at the corner of Livernois and Fenkell in 

the city of Detroit. Defendant established the prices that 

C. M. would charge for her services and followed her while 

she worked the streets. She turned over any money she 

earned to him. If C. M. complained about having to work or 

said “something smart” to defendant, he would strike her. 

C. M. was forced to work every day from 8:00 p.m. until 6:00 

a.m., except Sundays. On Sunday, defendant gave her 

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money to go shopping. While she worked, defendant gave 

her $10 for food. 

Before meeting defendant, C. M. did not engage in 

prostitution. Defendant maintained control over C. M. by 

threatening to kill her or her grandmother if C. M. tried to 

leave him. Defendant always had a gun with him. C. M. 

observed defendant strike other people, including Rosie. On 

one occasion, defendant forced C. M. to perform a sexual act 

upon defendant in front of his friends by holding a gun to her 

head. Ultimately, C. M. left defendant on August 25, 2010, 

after the two argued over C. M.’s refusal to go to work. He 

threatened her with a gun, but when he turned, she struck 

him with a bottle and ran. C. M. called the police from a gas 

station, hid from view as the police drove her by defendant’s 

home, and identified defendant. However, defendant was 

not apprehended at that time. 

Although D. J. did not work for defendant at the same time 

as C. M., her testimony was remarkably similar. 

Specifically, in early November, 2010, D. J. ran away from 

home after being sexually abused by a family member. D. J. 

agreed to go to a party at a home near Eastland Mall where 

she encountered defendant. Defendant asked D. J. how old 

she was, and she said, “15.” Defendant responded, “Now, 

you’re 19.” He engaged in sexual intercourse with D. J., and 

the next day, sent her out to work on the streets as a 

prostitute with another woman named “LaTonya.” When 

advised by LaTonya that they had not earned enough money 

for defendant, D. J. left defendant’s residence and stayed 

away for several weeks. 

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On December 25, 2010, D. J. returned to defendant’s home 

after contracting a sexually transmitted disease. D. J. 

needed to have a prescription filled and knew that defendant 

would help her obtain the prescription. She promised 

defendant that she would not leave him again, and he got 

the pills that she needed. The next evening, defendant 

picked up D. J. and two other girls and took them to the area 

of Fenkell and Livernois to work the streets. D. J. continued 

to work for defendant until she was picked up by the police 

and returned to her family home. After a family dispute, she 

was placed in a mental hospital for five days, but upon her 

release, D. J. contacted defendant. Defendant picked her up, 

she changed her clothes, and he drove her to Fenkell and 

Livernois to work as a prostitute. 

D. J. worked every day for defendant, starting between 7:00 

and 9:00 p.m., and returning between 8:00 and 10:00 a.m. 

One night, D. J. only earned $40. Defendant slapped her 

across the face and told her that would not happen again. 

D. J. observed defendant strike other girls, and he told the 

girls that if they left, defendant would find them and kill 

them. D. J. admitted that she engaged in sexual intercourse 

with defendant voluntarily and even initiated sex with him. 

However, one sexual assault provided the motivation for 

D. J. to leave defendant permanently. Defendant attempted 

to anally penetrate D. J. while he choked her, and when she 

resisted, he forced vaginal penetration as he continued to 

choke her. Shortly after this assault, D. J. made 

arrangements to have a friend pick her up when defendant 

was not home. 

C. M. and D. J. came to the attention of a task force 

investigating child exploitation. The authorities learned of 

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C. M. when reviewing the August 25, 2010 police report. A 

relative of D. J.’s called the authorities to report her as 

missing. The information provided by these girls led to an 

investigation of defendant, and the discovery that he was 

identified on a social networking website as “Pimping Rock.” 

Defendant’s theory of the case was that once the minors 

came into contact with the police, they falsely accused 

defendant to deflect from their own misconduct. On cross 

examination, C. M. admitted that she had posted 

information on the Internet that was incorrect, and D. J. 

admitted that she had stolen items from her family and a 

threat against a family member caused her to be sent to a 

mental hospital. Although C. M. accused defendant of 

assault and contacted the police, defendant was not arrested 

at that time, but C. M. was detained for a matter unrelated 

to defendant. Despite the attack on the credibility of the 

witnesses, defendant was convicted for his role in exploiting 

the teenage runaways, sexually assaulting them, forcing 

them to engage in prostitution, and taking their earnings. 

People v. Mitchell, No. 311605, 2014 Mich. App. LEXIS 235, at *2-7 

(Mich. Ct. App. Feb. 6, 2014); (see Dkt. 11-19 at 1-3). 

Following Petitioner’s conviction, he filed an appeal of right. His 

appellate counsel filed a brief raising two claims: (1) defendant was 

denied the effective assistance of counsel at trial; and (2) the sentences 

imposed violated defendant’s right to be free from cruel and unusual 

punishments. Mitchell, 2014 Mich. App. LEXIS 235, at *7-17. 

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Petitioner also filed a pro se supplemental brief that raised what now 

form his third through ninth habeas claims. Id. at *17-36. The 

Michigan Court of Appeals affirmed Petitioner’s convictions and 

sentences. Id. at *36. 

Petitioner subsequently filed an application for leave to appeal to 

the Michigan Supreme Court, raising most of the claims he raised 

before the Michigan Court of Appeals, omitting only his claims that the 

restitution order was invalid, that his right to be free from double 

jeopardy was violated, and that the sentencing guidelines were scored 

incorrectly. (See Dkt 11-20.) His pro se application also added two 

additional allegations of ineffective assistance of counsel. 

The Michigan Supreme Court denied the application because it 

was not persuaded that the questions presented should be reviewed by 

the Court. People v. Mitchell, 497 Mich. 902 (2014). Thus, the 

Michigan Court of Appeals was the last state court to adjudicate 

Petitioner’s claims. 

II. Standard 

Under the Antiterrorism and Effective Death Penalty Act of 1996, 

Pub. L. No. 104-132, 110 Stat. 1214 (“AEDPA”), a federal court can 

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order habeas relief only if the state’s adjudication of a claim (1) resulted 

in a decision that was contrary to, or involved an unreasonable 

application of, clearly established federal law, as determined by the 

Supreme Court of the United States, or (2) resulted in a decision that 

was based on an unreasonable determination of the facts in light of the 

evidence presented in the state court proceeding. 28 U.S.C. § 2254(d). 

When applying these standards, this Court is to examine the holdings of 

the Supreme Court as they existed at “the time of the relevant statecourt decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). The 

Court can, however, look to decisions of other courts to determine 

whether a legal principle has been clearly established by the Supreme 

Court. Hall v. Vasbinder, 563 F.3d 222, 232 (6th Cir. 2009); Smith v. 

Stegall, 385 F.3d 993, 998 (6th Cir. 2004). 

 “A state court’s determination that a claim lacks merit precludes 

federal habeas relief so long as ‘fairminded jurists could disagree’ on the 

correctness of the state court’s decision.” Harrington v. Richter, 562 

U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004)). “Section 2254(d) reflects the view that habeas corpus is a guard 

against extreme malfunctions in the state criminal justice systems, not 

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a substitute for ordinary error correction through appeal.” Id. at 103 

(internal quotation omitted). 

III. Analysis 

a. Ineffective assistance of counsel claim 

Petitioner claims that he was denied his Sixth Amendment right 

to effective assistance of his trial counsel. Petitioner argues that trial 

counsel was constitutionally deficient because he stipulated to the 

admission of a police report that contained inculpatory information, 

conceded that Petitioner was guilty of firearm and sexual conduct 

charges, failed to move to adjourn the case to locate the author of the 

police report, and failed to remove a biased juror. (Dkt. 1 at 4-8.) 

To establish a claim of ineffective assistance of counsel, Petitioner 

must show that (a) “counsel’s performance was deficient,” and (b) the 

“deficient performance prejudiced the defense.” See Strickland v. 

Washington, 466 U.S. 668, 687 (1984). To satisfy the performance 

element, a defendant must point to some action “outside the wide range 

of professionally competent assistance.” Id. at 690. To satisfy the 

prejudice element, “[t]he defendant must show that there is a 

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reasonable probability that, but for counsel’s unprofessional errors, the 

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

On federal habeas review of a state court decision on the merits, a 

court must apply a “doubly” deferential standard of review under 

AEDPA. “[T]he 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.” Richter, 562 

U.S. at 105. 

Regarding Petitioner’s first argument—that trial counsel was 

ineffective because he stipulated to the admission of a police report that 

was authored by an officer who was unavailable to testify at trial—the 

Michigan Court of Appeals rejected the claim on the merits: 

The defense theory of the case was that the testimony of the 

victims was not credible. To support the challenge to the 

credibility of C. M., defense counsel sought to call the officer 

who prepared the August 25, 2010 police report in response 

to C. M.’s emergency call. However, the officer did not 

appear at trial. In order to allow the trial to continue, the 

prosecution and the defense stipulated to admit the police 

report at trial. 

Generally, police reports are inadmissible hearsay. MRE 

801(c); In re Forfeiture of a Quantity of Marijuana, 291 Mich 

App 243, 254; 805 NW2d 217 (2011). The stipulation to 

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admit the police report is not a mistake apparent on the 

record, and this Court cannot examine the admission of the 

report with the benefit of hindsight. [People v Dunigan, 299 

Mich App 579, 589-590; 831 NW2d 243 (2013)]; [People v 

Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009)]. 

Although appellate counsel correctly notes that the police 

report contained information that corroborated the 

testimony by the victims, the report contained information 

critical to the defense. The corroborating information in the 

report was that C. M. identified defendant as a man who 

held her captive and forced her to engage in sex. However, 

C. M. also testified that defendant held a gun to her, and she 

was forced to strike him with a bottle to leave the house. 

Despite this testimony, the police report did not contain 

C. M.’s account of a gun or an injury to defendant from a 

bottle to allow her escape. Additionally, notwithstanding 

C. M.’s statements and identification, defendant was not 

apprehended by the police and charged with any crimes at 

that time. On the contrary, as a result of her emergency 

call, C. M. was detained for a matter unrelated to 

defendant’s activities. Consequently, the stipulated 

admission of the police report disclosed contradictions by 

C. M. to the jury. 

More importantly, the admission of the police report proved 

beneficial to the defense because the jury acquitted 

defendant of the charges related to C. M.’s departure from 

defendant’s home. Specifically, C. M. testified that she 

argued with defendant about having to work. To obtain 

C. M.’s cooperation, defendant allegedly took C. M.’s clothes 

and threatened her with a gun. Defendant was charged with 

three crimes arising from this argument, felonious assault, 

felony-firearm, and felon in possession, but was acquitted of 

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all three of these offenses. The jury also acquitted defendant 

of the first-degree CSC charge wherein C. M. testified that 

she was forced to engage in a sexual act with defendant in 

front of others at gunpoint. “A jury has the right to 

disregard all or part of the testimony of a witness.” People v 

Goodchild, 68 Mich App 226, 235; 242 NW2d 465 (1976). In 

light of the admission of the police report which did not 

contain any reference to a gun and the acquittal of the gun 

offenses, the factual predicate for a claim of ineffective 

assistance of counsel was not established. [People v Hoag, 

460 Mich 1, 6; 594 NW2d 57 (1999)]. 

Despite the acquittal of four offenses related to C. M.’s 

testimony and the content of the police report, defendant 

alleges that the admission of details in the police report that 

corroborated the testimony by the victims caused him to be 

convicted of eight offenses. However, the factual predicate to 

support that allegation is not apparent on the record and 

constitutes mere speculation. Id. After the parties 

stipulated to the admission of the police report, the trial 

court noted its policy that the exhibit would be available to 

the jury, but not submitted to them unless requested. A 

request by the jury to examine the exhibits is not contained 

in the lower court record. Furthermore, there was ample 

corroborating evidence to support defendant’s convictions 

irrespective of the content of the police report. 

Mitchell, 2014 Mich. App. LEXIS 235, at *7-14; (see Dkt. 11-19 at 4-5). 

 The Michigan Court of Appeals opinion on the merits is a 

“reasonable argument that counsel satisfied Strickland’s deferential 

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standard,” so habeas relief cannot be granted with respect to this 

argument. See Richter, 562 U.S. at 105. 

 Although Petitioner provides reasons to undercut his trial 

counsel’s decision to stipulate to admission of the police report, counsel’s 

strategy “need not be particularly intelligent or even one most lawyers 

would adopt.” Cone v. Bell, 243 F.3d 961, 978 (6th Cir. 2001), rev’d on 

other grounds, 535 U.S. 685 (2002). “Strategic choices by counsel, while 

not necessarily those a federal judge in hindsight might make, do not 

rise to the level of a Sixth Amendment violation.” McMeans v. Brigano, 

228 F.3d 674, 682 (6th Cir. 2000). 

Here, trial counsel’s decision to use the police report to attack 

C. M.’s credibility seems to have been a professionally competent 

tactical decision based on counsel’s calculation that on balance the 

report was more helpful than harmful, given that the jury acquitted 

Petitioner on the charges directly evidenced by C. M.’s statements 

contained in the report. Accordingly, Petitioner has failed to 

demonstrate entitlement to relief with respect to his first allegation of 

ineffective assistance of counsel. 

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The Michigan Court of Appeals also rejected Petitioner’s second 

allegation—that trial counsel was constitutionally deficient because he 

conceded that Petitioner was guilty of firearm and sexual conduct 

charges—on the merits: 

Although not raised in the statement of the questions 

presented, defendant further asserts that trial counsel was 

ineffective during closing arguments . . . by conceding that 

defendant may be guilty of the three firearm related charges 

and a CSC offense. . . . [C]ounsel did not concede that 

defendant was guilty of four offenses; the context of the 

entire closing argument reveals that he argued that 

reasonable doubt existed with regard to all of the charged 

offenses. In fact, the jury acquitted defendant of the four 

offenses appellate counsel contends were conceded. 

Defendant failed to meet this burden with regard to this 

claim of error. 

Mitchell, 2014 Mich. App. LEXIS 235, at *14-15; (Dkt. 11-19 at 5-6). 

 For the same reasons as those set forth above, the Michigan Court 

of Appeal’s decision was not unreasonable. Petitioner was acquitted of 

the firearm offenses and related sexual conduct charge (i.e., forcing 

C. M. to perform oral sex at gunpoint), the offenses that Petitioner 

claims trial counsel conceded during closing argument. And as noted by 

the state court, there is nothing on the record to support Petitioner’s 

allegation that trial counsel conceded these offenses as a factual matter. 

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Thus, the state court factual finding was not unreasonable. There is no 

basis on which to conclude that trial counsel was ineffective for making 

any such concession. 

Petitioner’s third and fourth allegations of ineffective assistance of 

counsel were not presented to the Michigan Court of Appeals in either 

appellate counsel’s brief or in Petitioner’s supplemental pro se brief. 

(See Dkt. 11-19 at 58-66, 117-151.) Rather, they were first presented to 

the state courts in Petitioner’s application for leave to appeal, filed in 

the Michigan Supreme Court, as New Issues I and II. (See Dkt. 11-20 

at 10-11.) Because these arguments were not presented to the state 

courts and are thus unexhausted, habeas relief cannot be granted on 

these grounds. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The 

Court may nevertheless deny relief with respect to unexhausted claims 

if it can determine that they lack merit. 28 U.S.C. § 2254(b)(2). 

In his first new claim, Petitioner argues that his trial counsel was 

ineffective for failing to seek an adjournment so that the officer who 

authored the police report noted above could provide testimony. 

Petitioner makes the conclusory statement that the officer “would have 

provided the jury with reasonable doubt to convict” based on “the[] 

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testimony.” (Dkt. 11-20 at 10.) Petitioner proffers no evidence that the 

officer would have testified favorably. Nor does he present any evidence 

that his trial counsel failed to consider moving for an adjournment. 

Absent any affidavit or other evidence establishing what a 

potential witness would specifically say that would be exculpatory, 

Petitioner cannot establish ineffective assistance of counsel on this 

ground. See Tinsley v. Million, 399 F.3d 796, 810 (6th Cir. 2005) 

(“[Petitioner] has not introduced affidavits or any other evidence 

establishing what [potential witnesses] would have said. . . . In the 

absence of any evidence showing that they would have offered specific 

favorable testimony, [Petitioner] cannot show prejudice from counsel’s 

strategy recommendation not to introduce this evidence.”). “It should go 

without saying that the absence of evidence cannot overcome the ‘strong 

presumption that counsel’s conduct [fell] within the wide range of 

reasonable professional assistance.’” Burt v. Titlow, 134 S. Ct. 10, 17 

(2013) (quoting Strickland, 466 U.S. at 689). Thus, Petitioner cannot be 

granted habeas relief based on this allegation. 

Finally, Petitioner asserts that his counsel was ineffective for 

failing to strike a juror on the grounds that she was biased. 

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(Dkt. 11-20 at 11.) The record shows that during jury selection, one 

juror initially indicated that she might not be able to be fair. But after 

further discussion with counsel and the trial court, the juror indicated 

that she could be fair. (Dkt. 11-12 at 118-20.) The juror also indicated 

during questioning that her brother had been falsely accused of a crime. 

(Id. at 119.) 

It was not constitutionally deficient to decline to challenge this 

juror. Rather, the Court can see why trial counsel would not. The 

juror’s indication that a relative had been falsely accused of a crime 

suggests that trial counsel made a reasonable tactical decision of the 

kind insulated from review under Strickland. Moreover, there is no 

evidence that the juror in question was actually biased against 

Petitioner, preventing him from showing that he was prejudiced by his 

counsel’s decision not to move to strike the juror. When a petitioner 

claims ineffective assistance of counsel for failing to strike a biased 

juror, the petitioner must show that the juror was actually biased 

against him. See Miller v. Francis, 269 F.3d 609, 616 (6th Cir. 2001). 

Accordingly, none of Petitioner’s arguments establish ineffective 

assistance of counsel, and the claim is denied. 

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b. Cruel and unusual punishment claim 

Petitioner argues that his Eighth Amendment right to be free 

from cruel and unusual punishments is violated by the length of his 

sentence. (Dkt. 1 at 14-17.) The Michigan Court of Appeals rejected 

Petitioner’s claim on the merits, finding that his sentence was not 

disproportionate to the seriousness of his offense and taking into 

account his age and criminal history. Mitchell, 2014 Mich. App. LEXIS 

235, at *15-17; (see Dkt. 11-19 at 6). 

The United States Constitution does not require strict 

proportionality between a crime and its punishment. Harmelin v. 

Michigan, 501 U.S. 957, 965 (1991); United States v. Marks, 209 F.3d 

577, 583 (6th Cir. 2000). Only an extreme disparity between crime and 

sentence violates the Eighth Amendment. Lockyer v. Andrade, 538 U.S. 

63, 77 (2003) (gross disproportionality principle applies only in the 

extraordinary case); Ewing v. California, 538 U.S. 11, 36 (2003) 

(principle applies only in “the rare case in which a threshold comparison 

of the crime committed and the sentence imposed leads to an inference 

of gross disproportionality”) (quoting Rummel v. Estelle, 445 U.S. 263, 

285 (1980)). 

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A sentence that falls within the maximum penalty authorized by 

statute “generally does not constitute ‘cruel and unusual punishment.’” 

Austin v. Jackson, 213 F.3d 298, 302 (6th Cir. 2000) (quoting United 

States v. Organek, 65 F.3d 60, 62 (6th Cir. 1995)). And “[f]ederal courts 

will not engage in a proportionality analysis except in cases where the 

penalty imposed is death or life in prison without possibility of parole.” 

United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995). 

Petitioner minimizes the harmfulness of his actions, implying that 

his young victims were somehow partially responsible for his crimes. 

But the record supports the Michigan Court of Appeals’ conclusion that 

Petitioner “engaged in violent conduct to ensure that his victims would 

comply with his demands.” Mitchell, 2014 Mich. App. LEXIS 235, at 

*17. Petitioner’s thirty-five- to sixty-year sentence for his crimes does 

not rise to the level of a cruel and unusual punishment. See, e.g.,

Andrade, 538 U.S. at 77 (not unreasonable under AEDPA for state court 

to find that two consecutive twenty-five years sentences, totaling fifty 

years, based on stealing $200 of videotapes constitutional); Smith v. 

Howerton, 509 F. App’x 476, 484 (6th Cir. 2012) (state court upholding 

sixty years based on possession of small amount of drugs not 

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“unreasonable” under AEDPA, in part because of “vagueness of the 

gross-disproportionality principle”). 

The Michigan Court of Appeals did not unreasonably apply the 

law when it found that Petitioner’s sentence does not run afoul of the 

Eighth Amendment. Accordingly, Petitioner’s Eighth Amendment 

claim is denied.

c. Due process claim 

Petitioner argues that his due process right to fair notice was 

violated when, on the first day of trial, the prosecutor successfully 

moved to amend a heading in the criminal information to eliminate the 

term kidnapping from the human trafficking charge. (Dkt. 1 at 18-20.) 

 The Michigan Court of Appeals rejected this claim on the merits: 

On the first day of trial, the prosecutor noted that although 

the information entitled offenses as human trafficking, the 

actual statutory and jury instruction reference was to forced 

labor involving CSC. Defense counsel did not object to the 

change to the title of the offense, but noted that he was 

prepared to defend against the CSC charge to the extent it 

involved kidnapping, and did not want the reference to 

kidnapping removed. The prosecutor noted that the 

charging language at bind over contained no reference to 

kidnapping. The trial court granted the motion to amend. 

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In light of the record, defendant waived appellate review of 

this claim of error. [People v Vaughn, 491 Mich 642, 663; 

821 NW2d 288 (2012)]. Nonetheless, the trial court did not 

abuse its discretion by allowing the amendment of the 

information. [People v Unger, 278 Mich App 210, 221; 749 

NW2d 272 (2008)]. Defendant was charged in the 

information with violating MCL 750.462i. The information 

entitled the crime “human trafficking.” The prosecutor 

merely amended the information to change the title of the 

crime to forced labor involving CSC, the underlying 

statutory charge continued to be MCL 750.462i. The 

amendment did not prejudice the defense because it did not 

charge a new crime. [People v Siterlet, 299 Mich App 180, 

186; 829 NW2d 285 (2012)]. This claim of error is without 

merit. 

Mitchell, 2014 Mich. App. LEXIS 235, at *22-23; (see Dkt. 11-19 at 8-9). 

 Setting aside the state court’s conclusion that the claim was 

waived, the amendment to the information nevertheless does not 

present a basis for granting habeas relief. Under the Sixth 

Amendment, a criminal defendant has the right to be informed of the 

nature of the accusations against him. Cole v. Arkansas, 333 U.S. 196, 

201 (1948); In re Oliver, 333 U.S. 257, 273 (1948); Lucas v. O’Dea, 179 

F.3d 412, 417 (6th Cir. 1999). As applied to the states under the “due 

process clause of the Fourteenth Amendment[,] . . . whatever charging 

method the state employs must give the criminal defendant fair notice 

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of the charges against him to permit adequate preparation of his 

defense.” Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988). 

An indictment “which fairly but imperfectly informs the accused of 

the offense for which he is to be tried does not give rise to a 

constitutional issue cognizable in habeas proceedings.” Mira v. 

Marshall, 806 F.2d 636, 639 (6th Cir. 1986). To show that the alleged 

defect in the information requires habeas relief, Petitioner must 

establish that: (1) he did not receive adequate notice of the charges; 

and (2) he was therefore denied the opportunity to defend himself 

against the charges. Roe v. Baker, 316 F.3d 557, 570 (6th Cir. 2002). 

 Here, Counts I and II of the information were labeled “Human 

Trafficking.” (Dkt. 11-12 at 6-7.) The language of the charge itself, 

however, did not contain any mention of kidnapping or human 

trafficking. (Id. at 7.) 

The victims’ testimony at the preliminary hearing before the 

criminal information was filed gave Petitioner a detailed account of the 

allegations made against him, including the allegation that he 

committed acts of forced labor involving sexual conduct. (See, e.g., Dkt. 

11-3 at 33-36.) And the late amendment merely deleted language 

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23 

appearing in the titles of the first two counts. The substance of the 

criminal information did not change. 

The Michigan Court of Appeals was not unreasonable in finding 

that the amendment of the criminal information did not deny Petitioner 

his right to fair notice of the charges against him. Thus, Petitioner was 

not deprived of an opportunity to defend himself at trial. Accordingly, 

Petitioner’s Eighth Amendment claim is denied. 

d. Jury instruction claim 

Petitioner argues that the trial court instructed the jury on the 

wrong version of first-degree criminal sexual conduct by failing to 

instruct the jury on the requirement that the victim be between 

thirteen and sixteen years of age and that the victim suffered personal 

injury. (Dkt. 1 at 21-24.) 

 After finding that Petitioner waived any error at trial by agreeing 

to the jury instructions, the Michigan Court of Appeals nevertheless 

found the claim to be without merit: 

Although he claims he could only be convicted of thirddegree CSC because of the age of the victims and that he 

was entitled to instructions regarding consent and physical 

injury, that is not the case. As previously noted, MCL 

750.520b(1)(b)(iii) provides that a person is guilty of first5:15-cv-10764-JEL-APP Doc # 16 Filed 12/20/16 Pg 23 of 37 Pg ID 1839
24 

degree CSC when the victim is between 13 and 16 years of 

age and the actor is in a position of authority over the victim 

and uses that authority to coerce the victim to submit. An 

underage victim is incapable of consenting, irrespective of 

the testimony from the victims, People v Starks, 473 Mich 

227, 235; 701 NW2d 136 (2005), and a victim need not resist 

when a defendant is charged under MCL 750.520b, see MCL 

750.520i. Defendant failed to demonstrate entitlement to 

appellate relief. MCL 768.29. 

Mitchell, 2014 Mich. App. LEXIS 235, at *32; (see Dkt. 11-19 at 12). 

To demonstrate entitlement to relief on a claim that a trial court 

gave an improper jury instruction, a habeas petitioner must show that 

the erroneous instruction “so infected the entire trial that the resulting 

conviction violates due process.” Henderson v. Kibbe, 431 U.S. 145, 155 

(1977). Moreover, “a state court’s interpretation of state law, including 

one announced on direct appeal of the challenged conviction, binds a 

federal court sitting in habeas corpus.” Stumpf v. Robinson, 722 F.3d 

739, 746 n.6 (6th Cir. 2013) (quoting Bradshaw v. Richey, 546 U.S. 74, 

76 (2005)). 

Here, the Michigan Court of Appeals did just that—it found that 

the trial court properly instructed the jury on the elements of the 

charged offenses. This Court cannot second-guess the state court’s 

determination of state law, and thus Petitioner cannot demonstrate 

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entitlement to relief based on this claim. Accordingly, Petitioner’s claim 

for relief based on improper jury instructions is denied. 

e. Prosecutorial misconduct claim 

Petitioner argues that the prosecutor improperly denigrated 

Petitioner’s character, vouched for the credibility of its witnesses, and 

improperly used evidence of prior bad acts. (Dkt. 1 at 25-28.) 

The United States Supreme Court has made clear that 

prosecutors must “refrain from improper methods calculated to produce 

a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). 

To prevail on a claim of prosecutorial misconduct, Petitioner must 

demonstrate that the prosecutor’s conduct or remarks “so infected the 

trial with unfairness as to make the resulting conviction a denial of due 

process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); see also 

Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly); 

Parker v. Matthews, __ U.S. __, 132 S. Ct. 2148, 2153 (2012) (confirming 

that Donnelly and Darden are the proper standard). 

After finding that Petitioner’s allegations were not preserved by a 

contemporaneous objection, the Michigan Court of Appeals rejected 

Petitioner’s prosecutorial misconduct claim on the merits: 

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Unpreserved claims of prosecutorial misconduct are 

reviewed for plain error affecting substantial rights. People 

v Ackerman, 257 Mich App 434, 448; 669 NW2d 818 (2003). 

“Reversal is warranted only when plain error resulted in the 

conviction of an actually innocent defendant or seriously 

affected the fairness, integrity, or public reputation of 

judicial proceedings, independent of defendant’s innocence.” 

Id. at 448-449. Where a curative instruction would have 

alleviated the prejudicial effect of any prosecutorial 

questioning or comment, error requiring reversal has not 

occurred. Id. at 449. When determining whether 

prosecutorial misconduct deprived a defendant of a fair and 

impartial trial, the defendant bears the burden of 

demonstrating that the conduct resulted in a miscarriage of 

justice. People v Brown, 279 Mich App 116, 134; 755 NW2d 

664 (2008). “A prosecutor may fairly respond to an issue 

raised by the defendant.” Id. at 135. “Prosecutors have 

discretion on how to argue the facts and reasonable 

inferences arising therefrom, and are not limited to 

presenting their arguments in the blandest terms possible.” 

People v Meissner, 294 Mich App 438, 456; 812 NW2d 37 

(2011). Despite this discretion, it is nonetheless improper for 

the prosecutor to appeal to the jury to sympathize with the 

victim. Id.

Although defendant raised general claims of prosecutorial 

misconduct, he failed to cite to the lower court record and 

address whether the claims were preserved for appellate 

review. Following a review of the record, we conclude that 

defendant failed to demonstrate plain error affecting 

substantial rights. Ackerman, 257 Mich App at 448. The 

record does not support the contention that the prosecutor 

improperly referenced defendant in derogatory terms or 

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improperly vouched for the credibility of her witnesses. 

Rather, the prosecutor argued that the nature of the charges 

and the corroboration in the testimony by the victims, 

despite being employed by defendant at different times, 

demonstrated that their testimony was credible. Similarly, 

there is no indication in the record that the prosecutor 

attempted to convict defendant based on character evidence. 

Defendant’s contention that the prosecutor improperly 

admitted evidence of other bad acts offered by the victims is 

also without merit. The jury is entitled to hear the 

“complete story” surrounding the matter in issue. People v 

Sholl, 453 Mich 730, 742; 556 NW2d 851 (1996). Evidence of 

other criminal events may be admissible when so blended or 

connected to the other crime that proof of one explains the 

circumstances of the other. Id. The more jurors know about 

the full transaction, the better equipped at performing their 

sworn duty. Id. The testimony regarding defendant’s 

assaults on others was not improper MRE 404(b) evidence, 

but explained how defendant obtained compliance from his 

victims and his management of his victims. Sholl, 453 Mich 

at 742. The prosecutor did not improperly admit defendant’s 

prior convictions before the jury. Rather, to avoid an inquiry 

into defendant’s criminal history, the parties stipulated that 

defendant was not eligible to carry a firearm. A party 

cannot agree to specific action in the trial court and submit, 

on appeal, that the action was erroneous. People v McCray, 

210 Mich App 9, 14; 533 NW2d 359 (1995). Finally, there is 

no requirement that the testimony of a criminal sexual 

conduct victim be corroborated for purposes of MCL 

750.520b. MCL 750.520h. This claim of error does not 

entitle defendant to appellate relief. 

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Mitchell, 2014 Mich. App. LEXIS 235, at *18-21; (see Dkt. 11-19 at 7-8). 

Here, Petitioner does no more than disagree with the state court’s 

conclusions. “[T]he Supreme Court has clearly indicated that the state 

courts have substantial breathing room when considering prosecutorial 

misconduct claims because constitutional line drawing in prosecutorial 

misconduct cases is necessarily imprecise.” Slagle v. Bagley, 457 F.3d 

501, 516 (6th Cir. 2006) (internal quotation marks and alterations 

omitted). Because “the Darden standard is a very general one,” courts 

have “more leeway . . . in reaching outcomes in case-by-case 

determinations.” Parker, 132 S. Ct. at 2155 (internal quotation marks 

omitted). 

Petitioner does not point to any part of the record refuting the 

state court’s characterization of what occurred at trial. Considering the 

state court analysis of Petitioner’s prosecutorial misconduct claims, 

Petitioner fails to establish that the state court determination rejecting 

his prosecutorial misconduct claims was contrary to, or an unreasonable 

application of, clearly established law as set forth by the Supreme 

Court. Accordingly, Petitioner is not entitled to habeas relief based on 

his prosecutorial misconduct claims. 

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f. Restitution claim 

Petitioner argues that he was improperly ordered to pay 

restitution, because the jury acquitted him of the charges of forced labor 

involving criminal sexual conduct and pandering with respect to 

complainant D. J. (Dkt. 1 at 28-29.) 

Federal habeas relief cannot be granted on this ground. A federal 

court may entertain a habeas application from a state prisoner “only on 

the ground that he is in custody in violation of the Constitution or laws 

or treaties of the United States.” 28 U.S.C. § 2254(a). Because an order 

of restitution has no bearing on the validity or duration of a petitioner’s 

custody, a challenge to an order of restitution is not cognizable under 

§ 2254. See United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995); see 

also United States v. Mays, 67 F. App’x 868, 869 (6th Cir. 2003) (district 

court lacked subject matter jurisdiction over defendant’s § 2255 postjudgment motion to reduce or rescind fine levied in criminal judgment; 

defendant was not in custody, as required in a motion to vacate 

sentence or a petition for a writ of habeas corpus). Accordingly, 

Petitioner’s claim for habeas relief based on the order of restitution is 

denied. 

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g. Double jeopardy claim 

Petitioner argues that his rights under the Double Jeopardy 

Clause were violated when he was convicted of multiple criminal sexual 

conduct offenses arising out of a single act. Specifically, Petitioner 

asserts that for a single sexual penetration he was convicted of two 

versions of first-degree criminal sexual conduct, one requiring personal 

injury and the other requiring that he was in a position of authority 

over the victim. (Dkt. 1 at 30-31.) 

 The Michigan Court of Appeals found that Petitioner abandoned 

the claim during his direct appeal because his pro se supplemental brief 

gave only cursory treatment to the issue. Mitchell, 2014 Mich. App. 

LEXIS 235, at *29-30. The state court also found that the claim ignored 

the fact that the victims testified to multiple acts of penetration, 

contrary to Petitioner’s allegations. Id.; (see Dkt. 11-19 at 11). 

 Petitioner was convicted of two counts of first-degree criminal 

sexual conduct with respect to victim D. J. One conviction (Count 3) 

was under MICH. COMP. LAWS § 750.520b(1)(f) (force or coercion used to 

accomplish sexual penetration causing personal injury), and the other 

(Count 5) was under § 750.520(1)(b) (victim between thirteen and 

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31 

sixteen years of age and actor is in position of authority over victim). 

Count 3 related to an incident in which D. J. testified that Petitioner 

choked her during a forcible sexual penetration. (See Dkt. 11-15 at 67.) 

Count 5 related to other incidents in which D. J., who was between 

thirteen and sixteen years of age, testified that she had sexual 

intercourse with Petitioner while she worked for him as a prostitute. 

(See id. at 73-74.) Petitioner’s claim is thus based on an incorrect 

reading of the record. 

Petitioner was not convicted of two counts of first-degree criminal 

sexual conduct for a single act. Accordingly, the claim for habeas relief 

based on double jeopardy is denied. 

h. Sufficiency of the evidence claim 

Petitioner argues that insufficient evidence was presented by the 

prosecution to sustain his criminal sexual conduct convictions. (Dkt. 1 

at 10-13.) He asserts that his first-degree criminal sexual conduct 

convictions were not supported by sufficient evidence because the 

prosecutor did not prove that Petitioner was in a position of authority 

over the victims or that he caused them personal injury. (Id. at 10-12.) 

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He also argues that the only evidence offered in support of the charges 

was the testimony of “admitted prostitutes.” (Id. at 12-13.) 

 As with the other claims raised in Petitioner’s pro se supplemental 

brief, the Michigan Court of Appeals found that Petitioner abandoned 

the claim by failing to adequately brief it. Mitchell, 2014 Mich. App. 

LEXIS 235, at *26. The state court also found that Petitioner’s 

convictions were nevertheless “premised on the jury’s evaluation of the 

credibility of the witnesses.” Id.; (see Dkt. 11-19 at 10). 

 A “daunting, doubly deferential standard of review” applies to a 

sufficiency-of-the-evidence claim under AEDPA. Keys v. Booker, 798 

F.3d 442, 450 (6th Cir. 2015). First, a reviewing court “must determine 

whether, viewing the trial testimony and exhibits 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.” Brown 

v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009) (citing Jackson v. Virginia, 

443 U.S. 307, 319 (1979)). Second, even if the reviewing court concludes 

that a rational trier of fact could not have found the petitioner guilty 

beyond a reasonable doubt, it “must still defer to the state appellate 

court’s sufficiency determination as long as it is not unreasonable.” Id. 

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 Here, Petitioner’s argument amounts to an attack on the 

credibility of the witnesses, who Petitioner claims were motivated to 

falsely accuse him of the charged crimes. Such claims must fail on 

federal habeas review. “A reviewing court does not reweigh the 

evidence or redetermine the credibility of the witnesses whose 

demeanor has been observed by the trial court.” Matthews v. 

Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003) (citing Marshall v. 

Lonberger, 459 U.S. 422, 434 (1983)). “A reviewing court ‘faced with a 

record of historical facts that supports conflicting inferences must 

presume—even if it does not affirmatively appear in the record—that 

the trier of fact resolved any such conflicts in favor of the prosecution, 

and must defer to that resolution.’” McDaniel v. Brown, 558 U.S. 120, 

132 (2010) (quoting Jackson, 443 U.S. at 326). 

The witnesses who testified against Petitioner at trial provided 

sufficient evidence to convict Petitioner, if their testimony is taken as 

true. On habeas review, that is what this Court must do. And under 

the even higher burden of AEDPA, which governs this Court’s review, 

the Michigan Court of Appeals was not unreasonable for so finding. 

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Accordingly, Petitioner is not entitled to habeas relief with respect to 

this claim and the claim is denied. 

i. State sentencing guidelines claim 

Petitioner argues that the trial court incorrectly scored the 

sentencing guideline’s offense variables. (Dkts. 1 at 15-17, 1-2 at 4.) 

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

Richey, 546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 

(6th Cir. 2002). Petitioner must show that the sentence imposed 

exceeded the statutory limits or is wholly unauthorized by law in order 

to succeed on such a claim. See Vliet v. Renico, 193 F. Supp. 2d 1010, 

1014 (E.D. Mich. 2002). A sentence imposed within the statutory limits 

is generally not subject to habeas review. Townsend v. Burke, 334 U.S. 

736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 

1999). 

Petitioner fails to show how his offense level was improperly 

scored. Rather, as found by the Michigan Court of Appeals, “there is no 

indication that a change in the scoring would alter the guidelines 

range.” Mitchell, 2014 Mich. App. LEXIS 235, at *36. Moreover, 

Petitioner does not establish that the Michigan Court of Appeals 

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35 

decision was unreasonable. Accordingly, Petitioner’s claim for habeas 

relief based on incorrect sentencing guidelines scoring is denied. 

IV. Conclusion 

For the reasons set forth above, the petition for a writ of habeas 

corpus (Dkt. 1) is DENIED WITH PREJUDICE. 

The Court also denies a certificate of appealability. In order to 

obtain a certificate of appealability, Petitioner must make “a 

substantial showing of the denial of a constitutional right.” See 28 

U.S.C. § 2253(c)(2). Under this standard, a petitioner must 

demonstrate that “reasonable jurists could debate whether (or, for that 

matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were ‘adequate to deserve 

encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473, 

483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). 

This determination “requires an overview of the claims in the habeas 

petition and a general assessment of their merit,” but “does not require 

a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S. 

322, 337 (2003). Petitioner fails to make a substantial showing of the 

denial of a federal constitutional right. Reasonable jurists would not 

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36 

find the Court’s assessment of Petitioner’s constitutional claims 

debatable or wrong. 

Finally, the Court denies leave to proceed in forma pauperis on 

appeal. A court may grant in forma pauperis status if the court finds 

that an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3); 

Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The 

standard for issuing a certificate of appealability has a higher threshold 

than the standard for granting in forma pauperis status, which requires 

showing that the appeal is not frivolous.”) (citing United States v. 

Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Because an appeal 

could not be taken in good faith here, Petitioner may not proceed in 

forma pauperis if he wishes to appeal this decision. Id.

IT IS SO ORDERED. 

Dated: December 20, 2016 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

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CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on December 20, 2016. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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