UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS PATRICK CUPPLES,

Petitioner, Civil No. 2:15-CV-11620

HONORABLE DENISE PAGE HOOD

v. CHIEF UNITED STATES DISTRICT JUDGE

MITCH PERRY,

Respondent.

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OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF

HABEAS CORPUS AND DENYING A CERTIFICATE OF

APPEALABILITY

Thomas Patrick Cupples, (“Petitioner”), confined at the Newberry

Correctional in Newberry, Michigan, filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, through his attorney Paul D. Hudson

of Miller Canfield, Paddock & Stone PLC, challenging his convictions for

two counts of second-degree criminal sexual conduct (CSC), for engaging

in sexual contact with a person at least 13 but less than 16 years of age,

who is a member of the same household, M.C.L.A. § 750.520c(1)(b), and

engaging in sexual contact with a person less than 13 years of age,

M.C.L.A.§ 750.520c(1)(a). For the reasons that follow, the petition for a

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writ of habeas corpus is DENIED.

I. Background

Petitioner was convicted following a jury trial in the Oakland County

Circuit Court. This Court recites verbatim the relevant facts relied upon by

the Michigan Court of Appeals, which are presumed correct on habeas

review pursuant to 28 U.S.C. § 2254(e)(1). See e.g. Wagner v. Smith, 581

F.3d 410, 413 (6th Cir. 2009):

The victim in this case is defendant’s stepdaughter. The victim,

her mother (Reito), and her brother (Michael), lived with defendant

until August 2010, at which time the victim told Reito that

defendant had been sexually assaulting her. The victim, who

turned 13 years old in April 2010, said that on “[m]ore than five,

but ... less than 20” occasions beginning “[a]round the summer of

fifth grade,” defendant “would touch [her] when [she] was

sleeping.” The assaults would occur in her bedroom at night. The

victim would awake to defendant “pulling [her] shorts aside,” and

defendant “would move [her] legs apart if they weren’t apart,” and

“take [her] ankles and stretch them to the side.” Defendant would

expose the victim’s “vaginal area,” and he “touche[d her]” with “his

fingers” and “rub[bed] them around on the outside of the skin, ...

and then he would rub them on the inside” of her vagina for

“[p]robably about five minutes.” In the time leading up to when the

victim revealed the abuse to Reito, she noticed that the touching

had progressed and that defendant “would start rubbing [her] butt.

She pretended to be sleeping during the assaults because she

was “afraid [defendant] might ... attack [her,] ...or tell [her] to not

... tell anyone[,] or ... rape” her, so she “just lay there and tr[ied]

not to move.” When defendant stopped touching her each time,

he would stand in the doorway for several minutes before leaving.

The following day, the victim would “try to act as normal [sic] as

possible” around defendant.

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The victim was not aware of every occasion on which defendant

assaulted her because defendant gave her “sleeping pills some

days[,] and he would give [her] hot chocolate with white powder,”

and she did not know what the powder was. When she took the

pills, which she estimated happened about three times, she would

“feel drowsy,” “fall asleep right away,” “sle[ep] really deep,” and

“didn’t wake up during the night.” During the winter months,

defendant would give the victim hot chocolate at night, about

“once a week,” “[m]ost of [the] time” without the victim having

asked for it. The victim began to discard the hot chocolate

defendant gave her when she noticed the white residue and odd

taste, “[b]ut then [defendant] would always tell [her] the rule was

[she] had to drink the hot chocolate no matter what[,] and [she]

had to finish it.... He never told [her] a reason[;] ... she had to drink

it.” When she drank defendant’s hot chocolate, the victim “felt

sleepy ... and [would] go to sleep.”

The victim also testified that defendant once gave her a “miniature

bottle[ ]” of wine, telling her to drink it, and “gave [her] a shot of

something” afterward. The victim did not want to drink the wine or

the shot, but did anyway, “[b]ecause [defendant] told [her] to and

[she] was kind of scared of him.” On another occasion, when the

victim was 13 years of age, defendant spoke to the victim about

masturbation. The conversation took place in her bedroom, with

the door closed, and lasted about 20 minutes. Defendant did not

touch the victim, but “showed [her] how to rub your vaginal area

to make you feel better.”

************************************************************************

Reito testified that the victim approached her on the patio and told

her, “I hate Tom.” After their discussion wherein the victim

revealed the abuse, Reito gathered the victim and Michael and

left the house. Reito returned to the home two days later with a

police escort to take “as much as [she] could.” She returned to the

house a second time on August 13, 2010, accompanied by friends

and police, to collect more personal belongings. She found that

the locks had been changed. With police supervision, Reito’s

friend replaced the lock on the front door, and they went inside.

Reito saw that the victim’s bedroom had been “completely

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cleaned out,” “[l]ike she never existed.” The victim’s belongings

had been placed in garbage bags and moved to the garage. The

family computer, which they called “[defendant’s] computer,” was

missing, as was its monitor, and the second computer, which had

previously been upstairs, was on the first floor.

A police search of the victim’s room included use of an ultraviolet

light, revealing bodily fluids on a section of carpet. Testing

revealed the presence of semen matching a buccal swab

provided by defendant.

Two jailhouse calls defendant made to his daughter from a

previous marriage, Colleen Fox, as well as his sister, Candy

Shinabarger were played for the jury. The first call was placed on

August 12, 2010, to the marital home where Fox and Shinabarger

had arrived to help defendant. Defendant repeatedly referred to

“assignments,” “homework that you and Tommy [Thomas Patrick

Cupples, Jr., defendant’s son] and [Shinabarger] have to

accomplish tonight,” and a “list of things to do,” which Fox and

Shinabarger were to discuss with defendant’s attorney. He asked

Shinabarger if she was “clear that they have to be done tonight,”

and she said, “Yes, the first thing we’re going to do is move the

comput[—,]” and defendant interrupted, saying, “Don’t, you can’t,

this is all recorded.” He then said, “I just need to know that you

[two] understand what your homework is.” She said, “We do, we

do.”

The second call was placed on the morning of August 13, 2010,

to the same location as the first. The conversation provided, in

pertinent part:

Shinabarger: ... I’ve done a lot of laundry and washed

[the] quilts [t]hat I found in that back closet.

The Defendant: Did you get the other assignments

completed?

Shinabarger: Oh, yeah, and[,] ah.

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The Defendant: I mean like every square inch of ...

Shinabarger: Yep.

The Defendant: Cleaning done?

Shinabarger: Yep, everything’s done[,] and ah, it’s all

prepared for our company this weekend and it’s also

prepared for [Tommy] when he comes out here to be

with you.

The Defendant: Oh, outstanding.

Shinabarger: Yeah, yep, so I’ve taken[,] ah, you

know[,] things to the basement again, you know[,]

bagged up[,] so ...

Jerry DeRosia, a forensic computer investigator with the Oakland

County Sheriff’s Office, testified that he received the computer

that was taken from the den in the marital home. He noticed that

the hard drive was “very clean,” meaning that “most of the

unallocated space [on the hard drive] seemed to be zeroed out.”

DeRosia expected to find more data in “temporary internet files”

than he actually did, considering that the computer had been used

regularly by four people, each of whom used the internet.

DeRosia uncovered “a lot of pornography,” including duplicates,

comprising “close to half” of all of the images on the computer.

DeRosia noticed several “Flash cookies” on the computer, which

are small files associated with Adobe Flash Player that are

routinely placed on a computer without the user’s knowledge

when the user visits webpages that feature Flash software.

DeRosia found Flash cookies for sleepassault.com, depicting

“teens being ... sexually assaulted while they sleep and don’t

wake up,” as well as mystepdadmademe.com, depicting “girls

having sex with their stepdads,” featuring images of a “[y]oung

adult” female and an “older” male.

People v. Cupples, No. 304393, 2013 WL 2120276, at *1–3 (Mich. Ct. App.

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May 16, 2013).

Subsequent to petitioner’s trial, appellate counsel filed a motion for a

new trial and a motion to remand for a Ginther1

 hearing on petitioner’s

ineffective assistance of trial counsel claims. The trial court denied

petitioner’s motion for a new trial and for an evidentiary hearing on January

6, 2012. People v. Cupples, No. 10-233457-FC (Oakland County Circuit

Court, Jan. 6, 2012). 

Petitioner’s conviction was affirmed on appeal. People v. Cupples,

2013 WL 2120276, at *1, 13 (Mich. Ct. App. May 16, 2013); lv. den. 495

Mich. 939, 843 N.W.2d 213 (2014).

Petitioner seeks a writ of habeas corpus on the following grounds:

I. Deficient Performance 1: Defense Counsel Failed to Make an

Obvious Winning Objection to the Prosecution Expert’s False

Testimony that Cupples Had Visited Pornographic Websites

Depicting Sexual Assault of Step-Daughters and Sleeping Victims.

II. Deficient Performance 2: Defense Counsel Failed to Shield

Cupples’ Computer-Forensics Expert from Impermissible

questioning.

III. Prejudice resulting from trial counsel’s errors.

II. Standard of Review

1 People v. Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).

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28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), imposes the following standard of

review for habeas cases: 

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

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.

A decision of a state court is “contrary to” clearly established federal

law if the state court arrives at a conclusion opposite to that reached by

the Supreme Court on a question of law or if the state court decides a

case differently than the Supreme Court has on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). 

An “unreasonable application” occurs when “a state court decision

unreasonably applies the law of [the Supreme Court] to the facts of a

prisoner’s case.” Id. at 409. A federal habeas court may not “issue the writ

simply because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal law

erroneously or incorrectly.” Id. at 410-11.

The Supreme Court explained that “[A] federal court’s collateral

review of a state-court decision must be consistent with the respect due

state courts in our federal system.” Miller-El v. Cockrell, 537 U.S. 322, 340

(2003). The “AEDPA thus imposes a ‘highly deferential standard for

evaluating state-court rulings,’and ‘demands that state-court decisions be

given the benefit of the doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010)

((quoting Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997); Woodford v.

Viscotti, 537 U.S. 19, 24 (2002)(per curiam)). “[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)(citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). In order to obtain

habeas relief in federal court, a state prisoner is required to show that the

state court’s rejection of his claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103. 

A habeas petitioner should be denied relief as long as it is within the

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“realm of possibility” that fairminded jurists could find the state court

decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152

(2016). 

III. Discussion

The ineffective assistance of counsel claims.

In his first claim, petitioner contends that he was denied the effective

assistance of trial counsel when trial counsel failed to object to Detective

Jerry DeRosia’s expertise and testimony given in connection with flash

cookies found on petitioner’s computer. In his second claim, petitioner

alleges that counsel was ineffective by failing to throughly investigate his

expert witness, Larry Dalman, to avoid impeachment in connection with

prior sexual harassment claims which resulted in disciplinary actions taken

in connection with this witness.

To show that he or she was denied the effective assistance of

counsel under federal constitutional standards, a defendant must satisfy a

two prong test. First, the defendant 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

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doing, the defendant must overcome a strong presumption that counsel’s

behavior lies within the wide range of reasonable professional assistance.

Id. Petitioner must overcome the presumption that, under the

circumstances, the challenged action might be sound trial strategy.

Strickland, 466 U.S. at 689. Second, the defendant must show that such

performance prejudiced his defense. Id. To demonstrate prejudice, the

defendant 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. “Strickland’s test for prejudice

is a demanding one. ‘The likelihood of a different result must be

substantial, not just conceivable.’” Storey v. Vasbinder, 657 F.3d 372, 379

(6th Cir. 2011)(quoting Harrington, 562 U.S. at 112). The Supreme

Court’s holding in Strickland places the burden on the defendant who

raises 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).

On habeas review, “the question ‘is not whether a federal court

believes the state court’s determination’ under the Strickland standard

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‘was incorrect but whether that determination was unreasonable-a

substantially higher threshold.’” Knowles v. Mirzayance, 556 U.S. 111, 123

(2009)(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)). “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. at 101. 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 (citing Yarborough v. Alvarado, 541 U.S. at 664). Pursuant to

the § 2254(d)(1) standard, a “doubly deferential judicial review” applies 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. 

“Surmounting Strickland’s high bar is never an easy task.” Id. at 105

(quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)). 

Petitioner brought his ineffective assistance of counsel claims before

the trial court in his motion for a new trial. In denying petitioner’s motion,

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the trial court ruled that even assuming that trial counsel was deficient,

petitioner failed to show prejudice which would have resulted in a different

outcome of his case, but for trial counsel’s deficiency.

Although the Michigan Court of Appeals found that trial counsel was

ineffective by failing to raise an objection to DeRosia’s cookie testimony, in

that it would have been sustained by the trial court, the Court ruled instead

that counsel’s deficiencies did not prejudice petitioner. In quoting the trial

court findings, the Michigan Court of Appeal reasonably found that there

was overwhelming evidence presented at trial with no probability of a

different outcome had DeRosia’s cookie testimony been excluded at trial,

as follows:

In denying defendant’s motion for new trial, the trial court noted:

Defendant takes issue with DeRosia’s testimony that

the presence of the flash cookies necessarily

“means” that “somebody went to that site and viewed

something that required a flash player to make.” This

testimony, Defendant argues, was incorrect, as

Defendant’s computer could have acquired the flash

cookies by visiting another site that included content,

such as banner advertisements using the flash

system, from the “mystepdadandme.com” and

“sleepassault.com.” Thus, the testimony could have

been excluded if a proper objection had been made.

Defendant’s objections to the testimony about what

the presence of the flash cookies “means” appears to

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be legitimate, as it appears that the presence of the

flash cookies does not necessarily imply that

somebody went to “that site” and viewed its contents.

This error also calls into question Detective

DeRosia’s qualifications to testify on this issue.

However, the trial court went on to conclude:

But evidence regarding the flash cookies was only a

small part of the prosecution’s case. In addition, the

prosecution provided testimony from the victim

describing the assaults, as well as credible objective

evidence (such as the semen recovered from the

victim’s bedroom) corroborating the victim’s version

of events and evidence of highly incriminating

statements made by Defendant during his telephone

calls from jail. Moreover, there is no claim that

Detective DeRosia was not qualified to testify

regarding other aspects of Defendant’s computer,

including indication that it had been “cleaned” to

remove indications of how it had been used before it

was turned over to authorities. Finally, the absence

of evidence regarding flash cookies would not have

undermined the credibility of any of the prosecution’s

other evidence.

In this context, the Court does not see even a remote

possibility that the jury would have acquitted

Defendant if his trial counsel had successfully

objected to Detective DeRosia’s testimony regarding

the flash cookies, much less the “reasonable

probability” of such a result required to obtain relief

on this basis. Rather, even if defense counsel was

negligent in failing to object in this regard, such

negligence cannot be said to call into question the

reliability of the jury’s verdict in this case. Thus,

Defendant is not entitled to relief on this basis.

13
People v. Cupples, 2013 WL 2120276, at * 8-9.

A reviewing court “need not determine whether counsel’s

performance was deficient ... [i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice ....”.

Strickland, 466 U.S. at 697. Thus, if an alleged error by counsel was not

prejudicial, a federal court need not determine whether counsel’s

performance was constitutionally deficient. See McMeans v. Brigano, 228

F.3d 674, 686 (6th Cir. 2000)(citing to Strickland, 466 U.S. at 697). The

critical inquiry for the Court in this case is whether petitioner was

prejudiced by counsel’s deficiencies in light of the evidence presented at

trial.

Petitioner is unable to show that he was prejudiced by trial counsel’s

deficiencies. The Michigan Court of Appeals, in deference to the trial

court’s findings, reasonably concluded that there was overwhelming

testimony and physical evidence entered at petitioner’s trial to sustain a

conviction against petitioner, in spite of the instances of trial counsel’s

failure to object to the cookie testimony provided by DeRosia, and trial

counsel’s failure to investigate before trial the background of his expert

witness. Furthermore, the prosecution had a strong case against

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petitioner as delinated in the findings made by the Michigan Court of

Appeals. See Cupples, 2013 WL 2120276, at *10.

Although, the trial court judge found that DeRosia’s flash-cookie

testimony “could have been excluded if a proper objection had been

made,” petitioner would not be able to satisfy the prejudice prong of

Strickland due to amount of overwhelming evidence present by the

prosecutor. Id. at *9.

Likewise, the trial court judge found that assuming that the

prosecutor impeached the defense expert Dalman, so as to provide

credibility to Derosia’s testimony, the only difference in testimony given by

the two experts pertained to the flash-cookies on petitioner’s computer and

this piece of evidence was but a small part of the prosecutor’s closing

argument. 

The only substantial disagreement that Dalman had with

Detective Derosia involved the implications that could be drawn

from the discovery of the flash cookies on Defendant’s computer.

As discussed above, however, there is not a reasonable

probability that the result of the trial would have been different if

the evidence of the flash cookies had not been introduced. If so,

it also stands to reason that there is not a reasonable probability

that the result of the trial could have been different if Defendant’s

expert had not been impeached in this regard. Thus, Defendant

cannot establish this element of his ineffective assistance of

counsel claim based on the introduction of the impeachment

evidence.

15
People v. Cupples, No. 10-233457-FC, *6 (Oakland County Cir. Ct. Jan. 6,

2012). 

Due to the substantial amount of evidence presented, exclusion of

all cookie testimony would not have effected the outcome of petitioner’s

trial. Petitioner has failed to show that he was prejudiced by the inclusion

of Detective DeRosia’s testimony and/or trial counsel’s failure to

investigate his expert witness before trial. Therefore, the Michigan Court

of Appeals reasonably found that trial counsel’s errors did not have an

effect on the verdict due to the overwhelming evidence presented by the

prosecution. Petitioner is not entitled to habeas relief. 

IV. Conclusion

The Court will deny the petition for a writ of habeas corpus. 

A habeas petitioner must receive a certificate of appealability

(“COA”) in order to appeal the denial of a habeas petition for relief from

either a state or federal conviction.2

 28 U.S.C. §§ 2253(c)(1)(A), (B). A

court may issue a COA “only if the applicant has made a substantial

2

Effective December 1, 2009, the newly created Rule 11 of the Rules Governing Section 2254

Cases in the United States District Courts, 28 U.S.C. foll. § 2254, provides that “[t]he district court must

issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a),

28 U.S.C. foll. § 2254; See also Strayhorn v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010). 

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

When a federal district 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). This Court denies a certificate of appealability

because reasonable jurists would not find this Court’s assessment of the

claims to be debatable or wrong. Id. at 484. 

V. ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a

writ of habeas corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED That a certificate of appealability is

DENIED.

S/Denise Page Hood 

Denise Page Hood

Chief Judge, United States District Court

Dated: July 31, 2017

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

counsel of record on July 31, 2017, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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