UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

CHARLES DEXTER INGRAM, 

 Petitioner, Case Number 15-11074 

v. Honorable David M. Lawson 

JOE BARRETT, 

 

 Respondent, 

_________________________________/ 

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

 Petitioner Charles Ingram was convicted by a jury in the Saginaw County, Michigan circuit 

court of various counts of criminal sexual conduct for sexually assaulting the daughter of a 

coworker. He filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the 

sufficiency of the evidence, the fairness of his trial, the propriety of convicting him of multiple 

counts in light of the Double Jeopardy Clause, the scoring of the state advisory sentencing 

guidelines, and the performance of his attorney. The warden responded, arguing that some of the 

claims are barred by procedural defenses and the rest lack merit. Because the state courts 

adjudicated Ingram’s claims consistent with controlling federal law, and none of them support 

issuance of the writ, the Court will deny the petition. 

I. 

 The Michigan Court of Appeals succinctly summarized the facts of the case in its opinion 

on direct appeal as follows: 

Defendant’s convictions stem from the sexual assault of “BJ” in the basement of a 

home that defendant was renovating. BJ testified that her father worked for 

defendant and that she sometimes accompanied her father and was paid for work 

that she performed. According to BJ, defendant grabbed her hands and held them 

behind her back while he pulled her pants down, squeezed her breasts, and vaginally 
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penetrated her with his penis. Defendant testified that the sexual encounter was 

consensual. 

People v. Ingram, No. 309035, 2013 WL 3717793, at *1 (Mich. Ct. App. July 16, 2013). 

 Ingram was convicted of one count of third-degree criminal sexual conduct, Mich. Comp. 

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

Laws § 750.520e(1)(b). He was sentenced to concurrent prison terms totaling seven to fifteen 

years. His convictions were affirmed on appeal. Id., lv. den. 495 Mich. 915, 840 N.W.2d 336 

(2013) (Table). 

 Ingram then filed a petition for a writ of habeas corpus, which was held in abeyance so that 

he could return to the state courts to exhaust additional claims. He filed a post-conviction motion 

for relief from judgment, which was denied. People v. Ingram, No. 08-031317-FH (Saginaw Cty. 

Cir. Ct. Dec. 1, 2015). The Michigan appellate courts denied leave to appeal. People v. Ingram, 

No. 332098 (Mich. Ct. App. July 25, 2016), lv. den. 500 Mich. 926, 888 N.W.2d 97 (2017) (Table). 

 On February 14, 2017, this Court reopened the case and permitted Ingram to file an 

amended habeas petition. In his original and amended petitions, he seeks habeas relief on the 

following grounds: 

I. Petitioner claims that there was insufficient evidence to justify a reasonable 

juror concluding that all elements of the crime of criminal sexual conduct in the 

third degree and fourth degree was established beyond a reasonable doubt and all 

the state courts demonstrated an unreasonable application of precedential federal 

law set forth in Jackson v. Virginia. 

II. Petitioner’s verdict was against the great weight of the evidence and the state 

courts demonstrated an unreasonable determination of the facts of the case. 

III. Petitioner’s rights to a fair trial were infringed upon by the improper denial of 

the motion in limine relative to the introduction of evidence of the victim’s prior

sexual history with third parties and in particular her prior claims of pregnancy. 

Pet. at 3-4. 
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IV. Petitioner’s conviction is a product of one being incarcerated whom is 

actually innocent [as] the acts that occurred petitioner holds where [sic] 

consensual and that petitioner did not have the malice intent or the mens rea of the 

act that he was convicted of. The prosecution failed to establish these specific act 

[sic] of intent causing a miscarriage of justice also some testimony was a product 

of perjury and resulting in a Napue violation and one was convicted by the 

violation and denied a fair trial. 

V. Defendant’s convictions should be vacated and he should be granted a new 

trial because he was subjected to double jeopardy in violation of the Fifth 

Amendment of the United States Constitution, where he was subjected to multiple 

prosecutions for the same offense. 

VI. Defendant did not receive the effective assistance of trial counsel when 

counsel failed to object when the court gave a jury instruction that permitted the 

jury to find him guilty even if they were not in unanimous agreement on each 

charge. 

VII. Defendant did not receive the effective assistance of trial counsel when 

counsel failed to impeach complainant with her preliminary examination 

testimony, when she testified at his trial, and when counsel failed to point out the 

discrepancies between complainant’s preliminary examination test[i]mony and 

her trial testimony, where it came out at trial, at her closing argument. 

VIII. Defendant did not receive the effective assistance of trial counsel when 

counsel failed to do a proper investigation and present facts contained in 

documents that negated complainant’s version of events, and therefore, she should 

not have been believed. 

IX. The trial court improperly scored the offense variable 13 and prior record 

variable 7 making the guidelines incorrect in violation of Defendant’s Sixth and 

Fourteenth Amendment rights. 

X. Defendant did not receive the effective assistance of appellate counsel when 

counsel did not raise the issues he now raises, on defendant’s appeal of right, and 

thus, he fulfills the “cause” requirement of MCR 6.508(D)(3)(a). 

Amend. Pet. at 7, 11, 18, 26, 42, 52, 55. 

 The warden filed an answer to the petition raising the defenses of procedural default and 

untimeliness. The “procedural default” argument is a reference to the rule that the petitioner did 

not preserve properly some of his claims in state court, and the state court’s ruling on that basis is 

an adequate and independent ground for the denial of relief. Coleman v. Thompson, 501 U.S. 722, 
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750 (1991). The untimeliness argument references the requirement that a habeas petitioner must 

bring his claims within one year of the date his conviction becomes final. See 28 U.S.C. 

2244(d)(1). In this case, although the petition was stayed in this Court, Ingram did not file his 

post-conviction motion in state court until after the one-year statute of limitations expired. The 

warden reasons that those new claims are all untimely because there was not limitations period to 

toll by the time the post-conviction was filed. See Hargrove v. Brigano, 300 F.3d 717, 718 n.1 

(6th Cir. 2002) (holding that a state court post-conviction motion that is filed after the limitations 

period expires cannot toll that period because there is no period remaining to be tolled); Searcy v. 

Carter, 246 F.3d 515, 519 (6th Cir. 2001) (holding that the AEDPA’s limitations period does not 

begin to run anew after the completion of state post-conviction proceedings). The Court finds it 

unnecessary to address these procedural questions. They are not a jurisdictional bar to review of 

the merits, Howard v. Bouchard, 405 F.3d 459, 476 (6th Cir. 2005) (procedural default); Smith v. 

State of Ohio Dept. of Rehab., 463 F.3d 426, 429, n.2 (6th Cir. 2006) (statute of limitations), and 

“federal courts are not required to address a procedural-default issue before deciding against the 

petitioner on the merits,” Hudson v. Jones, 351 F.3d 212, 215 (6th Cir. 2003) (citing Lambrix v. 

Singletary, 520 U.S. 518, 525 (1997)). These procedural defenses will not affect the outcome of 

this case, and it is more efficient to proceed directly to the merits. 

II. 

 Certain provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 

Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” 

the standard of review federal courts must apply when considering an application for a writ of 

habeas corpus raising constitutional claims, including claims of ineffective assistance of counsel. 

See Wiggins v. Smith, 539 U.S. 510, 520 (2003). A federal court may grant relief only if the state 
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court’s adjudication “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 if the adjudication “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)(1)-(2). 

 “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings, 

as opposed to the dicta, of [the Supreme] Court’s decisions.” White v. Woodall, 572 U.S. 415, 419 

(2014) (quotation marks and citations omitted). “As a condition for obtaining habeas corpus from 

a federal court, a state prisoner must show that the state court’s ruling on the claim being presented 

in federal court was so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington 

v. Richter, 562 U.S. 86, 103, (2011). The distinction between mere error and an objectively 

unreasonable application of Supreme Court precedent creates a substantially higher threshold for 

obtaining relief than de novo review. Mere error by the state court will not justify issuance of the 

writ; rather, the state court’s application of federal law “must have been objectively unreasonable.” 

Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000) (quotation 

marks omitted)). The AEDPA 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). Moreover, habeas review is “limited to the record that was before the 

state court.” Cullen v. Pinholster, 563 U.S. 170, 180 (2011). 

 Even though the state appellate courts did not give full consideration to some of Ingram’s 

federal claims on appeal, AEDPA’s highly deferential standard for reviewing a habeas petitioner’s 

constitutional claims applies here. The petitioner must show that “the state court decision was 
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‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or 

involved an ‘unreasonable determination of the facts.’” Kelly v. Lazaroff, 846 F.3d 819, 831 (6th 

Cir. 2017) (quoting 28 U.S.C. ' 2254(d)). That standard applies “even when a state court does not 

explain the reasoning behind its denial of relief.” Carter v. Mitchell, 829 F.3d 455, 468 (6th Cir. 

2016). “Under [Harrington v. Richter, 562 U.S. 86 (2011)], ‘[w]hen a federal claim has been 

presented to a state court and the state court has denied relief, it may be presumed that the state 

court adjudicated the claim on its merits in the absence of any indication or state-law procedural 

principles to the contrary.’” Barton v. Warden, S. Ohio Corr. Facility, 786 F.3d 450, 460 (6th Cir. 

2015) (quoting Harrington, 562 U.S. at 99). There is nothing in this record that suggests a basis 

for rebutting that presumption. See Johnson v. Williams, 568 U.S. 289, 303 (2013). 

A. 

 Ingram first contends that the evidence was not sufficient at trial to prove that the sexual 

encounter was accomplished with force or coercion, which is an essential element of both thirddegree and fourth-degree criminal sexual conduct. The Michigan Court of Appeals found 

sufficient evidence that Ingram forced himself on the woman. Ingram, 2013 WL 3717793, at *2. 

 That court’s determination of the record evidence was reasonable and consistent with 

federal law. It is well established that “the Due Process Clause protects the accused against 

conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the 

crime with which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). And on direct appeal, 

review of a sufficiency of the evidence challenge must focus on whether “after viewing the 

evidence in the light most favorable to the prosecution, any rational trier of fact could have found 

the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 

307, 319 (1979). That rubric “must be applied with explicit reference to the substantive elements 
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of the criminal offense as defined by state law,” Jackson, 443 U.S. at 324 n.16, and through the 

framework of 28 U.S.C. § 2254(d), Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir. 2002). The 

Sixth Circuit reads those cases as creating a gauntlet for state prisoners asserting a sufficiency-ofevidence challenge under the AEDPA: they must penetrate “two layers of deference to groups who 

might view facts differently” than a reviewing court on habeas review — the factfinder at trial and 

the state court on appellate review. Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). 

 Under Michigan law, a person is guilty of third-degree criminal sexual conduct if he or she 

engages in sexual penetration with another person and force or coercion is used to accomplish the 

sexual penetration. Mich. Comp Laws § 750.520d(1)(b). A person is guilty of fourth-degree 

criminal sexual conduct if he or she engages in sexual contact with another person and force or 

coercion is used to accomplish the sexual contact. Mich. Comp Laws § 750.520e(1)(b). The 

Michigan Legislature defined “force or coercion” to include the following: 

(1) When the actor overcomes the victim through the actual application of physical 

force or physical violence; 

(2) When the actor coerces the victim to submit by threatening to use force or 

violence on the victim, and the victim believes that the actor has the present ability 

to execute these threats; or 

(3) When the actor coerces the victim to submit by threatening to retaliate in the 

future against the victim, or any other person, and the victim believes that the actor 

has the ability to execute this threat. 

Mich. Comp Laws § 750.520b(1)(f)(i)-(iii). 

 Proof of physical violence is sufficient but not necessary. People v. Malkowski, 198 Mich. 

App. 610, 613, 499 N.W.2d 450, 451 (1993). The term “force” includes the exertion of strength 

or power on another person. People v. Premo, 213 Mich. App. 406, 409, 540 N.W.2d 715, 717 

(1995) (holding that the “[d]efendant’s pinching of the victims’ buttocks satisfies the force element 

of the statute”) (quoting The Random House College Dictionary: Revised Edition, 515). The term 
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“coercion” includes circumstances that create a reasonable fear of dangerous consequences. 

People v. McGill, 131 Mich. App. 465, 470-472, 346 N.W.2d 572, 575-76 (1984). 

 The court of appeals held that the record contained abundant evidence to permit a jury to 

find that element beyond a reasonable doubt. This Court agrees. The victim testified that Ingram 

grabbed her hands and placed them behind her back. Trial Tr. at. 40-41, 52, ECF No. 11-6, 

PageID.332, 335. Ingram proceeded to push the victim over a cabinet. He squeezed the victim’s 

breasts and touched her vaginal area over her clothes. Ingram then pulled down the victim’s pants 

with force before placing his penis into the victim’s vagina from behind. Id. at 40-42, PageID.332. 

This evidence, if believed, is sufficient to establish that Ingram used force to accomplish the sexual 

assault. The appellate court’s determination faithfully applies Jackson. 

 Ingram also insists that the evidence was insufficient because the victim’s testimony was 

uncorroborated or not credible. That argument is a nonstarter. The testimony of a single, 

uncorroborated prosecuting witness is sufficient to support a conviction, as long as the prosecution 

presents evidence that proves the elements of the offense beyond a reasonable doubt. Brown v. 

Davis, 752 F. 2d 1142, 1144-1145 (6th Cir. 1985). The testimony of a sexual assault victim alone 

is sufficient to support a criminal defendant’s sexual assault conviction. See United States v. 

Howard, 218 F.3d 556, 565 (6th Cir. 2000) (citing Gilbert v. Parke, 763 F. 2d 821, 826 (6th Cir. 

1985)). 

 Moreover, a federal habeas 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 
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of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.’” 

McDaniel v. Brown, 558 U.S. 120, 133 (2010) (quoting Jackson, 443 U.S. at 326). 

 Ingram is not entitled to relief on his first claim. 

B. 

 Ingram raised a related claim in the Michigan Court of Appeals — that his conviction is 

against the great weight of the evidence — and he raises it again here. That court rejected Ingram’s 

contention, which focused mainly on the victim’s credibility. That argument has no traction here, 

because it is a claim grounded in state law, and a federal habeas court has no power to grant habeas 

relief on the ground that a state conviction is against the great weight of the evidence. Cukaj v. 

Warren, 305 F. Supp. 2d 789, 796 (E.D. Mich. 2004); Dell v. Straub, 194 F. Supp. 2d 629, 648 

(E.D. Mich. 2002); see also Artis v. Collins, 14 F. App’x 387 (6th Cir. 2001) (declining to grant 

certificate of appealability to habeas petitioner on claim that jury’s verdict was against the manifest 

weight of the evidence). 

C. 

 Ingram next contends that he was denied the right to a fair trial when the judge denied his 

motion to allow evidence of the victim’s prior sexual history with other men. He was prepared to 

offer testimony (1) “from a man who claimed to have had a sexual encounter with BJ, who then 

falsely accused him of impregnating her and began stalking him”; (2) from the same “man’s 

supervisor that he had spoken with BJ about the stalking”; and (3) “from a third man claiming that 

BJ ‘would hit on anyone’ and had ‘tried to get with him.’” Ingram, 2013 WL 3717793, at *3. 

 The trial court refused to allow those witnesses to give that evidence on the authority of 

Michigan’s Rape Shield Law. That statute prohibits the introduction of evidence describing a 

sexual assault victim’s past sexual conduct either in the form of specific acts, opinions, or 
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reputation, unless the evidence satisfied a balancing test and fell into at least one of two categories: 

“(a) Evidence of the victim’s past sexual conduct with the actor[, or] (b) Evidence of specific 

instances of sexual activating showing the source or origin of semen, pregnancy, or disease.” 

Mich. Comp. Laws § 750.520j(1). 

 The court of appeals agreed that the testimony was barred by the statute. It also determined 

that the evidence was not relevant to the issue whether the victim consented to the specific sexual 

encounter with Ingram. Ingram, 2013 WL 3717793, at *3. 

 It is well established that an accused person has a constitutional right to confront the state’s 

witnesses and to call witnesses of his own to establish a defense. Washington v. Texas, 388 U.S. 

14, 19 (1967); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986) (“whether rooted directly in 

the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or 

Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 

‘a meaningful opportunity to present a complete defense’”) (citations omitted). There are 

limitations, however, including those imposed by state evidence codes. Montana v. Egelhoff, 518 

U.S. 37, 42 (1996); see also Rock v. Arkansas, 483 U.S. 44, 55 (1987) (stating that “[t]he right 

‘may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial 

process’”) (quoting Chambers v. Mississippi, 410 U.S. 284, 295 (1973)). 

 The Supreme Court has recognized a state’s “legitimate interest” in enforcing the 

protection of victims that Rape Shield statutes offer. See Michigan v. Lucas, 500 U.S. 145, 149-

50 (1991) (“The Michigan statute represents a valid legislative determination that rape victims 

deserve heightened protection against surprise, harassment, and unnecessary invasions of 

privacy.”) (addressing the statute’s notice requirement). The question, then, is whether the trial 

judge improperly balanced Ingram’s interest in presenting his defense witnesses against the state’s 
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interest in protecting a sexual assault victim from a probing inquiry into her sexual history with 

individuals other than Ingram. Obtaining a positive answer to that question presents Ingram with 

a formidable task. The Supreme Court has acknowledged a “traditional reluctance to impose 

constitutional constraints on ordinary evidentiary rulings by state trial courts.” Crane, 476 U.S. at 

689. And the Supreme Court affords trial judges “wide latitude” to exclude evidence that is 

repetitive, marginally relevant, or that poses a risk of harassment, prejudice, or confusion of the 

issues. Ibid. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Under AEDPA’s 

highly deferential standard of review, a habeas petitioner must show that the state trial court’s 

decision to exclude the evidence was “an objectively unreasonable application of clearly 

established Supreme Court precedent.” See Rockwell v. Yukins, 341 F.3d 507, 511-12 (6th Cir. 

2003). 

 Ingram has not done so here. As the court of appeals aptly noted, the victim’s willingness 

to engage in sex with other men on other occasions had little bearing on whether she consented to 

have sex with Ingram on this occasion. The determination that Ingram’s proposed evidence was 

only marginally relevant is entitled to substantial deference. It is true that the state courts never 

articulated on the record a rationale that balanced the interests protected by the Rape Shield Statute 

against Ingram’s Confrontation Clause rights. “[B]ut the absence of such reasoning does not dilute 

the degree of deference this Court must accord the state court’s ultimate ruling. ‘Where a state 

court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be 

met by showing there was no reasonable basis for the state court to deny relief.’” Fuller v. Lafler, 

826 F. Supp. 2d 1040, 1057 (E.D. Mich. 2011), aff'd sub nom. Fuller v. Woods, 528 F. App’x 566 

(6th Cir. 2013) (quoting Harrington, 562 U.S. at 98). 
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 It is worth noting that Michigan’s Rape Shield statute does not preclude admission of 

evidence of prior false or unsubstantiated rape allegations. See Mathis v. Berghuis, 90 F. App’x 

101, 107 (6th Cir. 2004). But none of Ingram’s proposed witnesses would have testified that the 

victim falsely accused them of sexually assaulting her. Any prior sexual encounters between the 

victim and other men would have been only remotely relevant to establishing a motive for her to 

falsely accuse Ingram of sexual assault. 

 The state courts did not unreasonably apply the Supreme Court’s Confrontation Clause 

jurisprudence. He is not entitled to relief on this claim. 

D. 

 In his fourth claim, Ingram argues that he should be released because he is actually innocent 

since the victim committed perjury. That argument suffers from two maladies: there is no Supreme 

Court case that acknowledges a free-standing claim of innocence in a habeas proceeding outside 

the death penalty context, and Ingram’s evidence of perjury consists only of the victim’s prior 

inconsistent statements, which the jury has considered already. 

 First, there is no recognized federal constitutional claim that allows relief for the denial of 

a new trial, even when the motion is based on newly-discovered evidence, and even coupled with 

a claim of actual innocence, at least in non-capital cases. 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 proceeding. See also Cress v. Palmer, 484 F.3d 844, 

854-55 (6th Cir. 2007) (collecting cases). As the Supreme Court explained, “federal habeas courts 

sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct 

errors of fact.” Herrera, 506 U.S. at 400. 
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 Second, there is no new evidence suggesting that the victim committed perjury. It is well 

established that a prosecutor’s knowing use of perjured testimony violates the Due Process Clause. 

Napue v. Illinois, 360 U.S. 264, 269 (1959). But to prevail on such a claim, a defendant must 

show that the witness’s statements were actually false, that the statements were material, and that 

the prosecutor knew they were false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998). Mere 

inconsistencies in a witness’s testimony do not establish the knowing use of false testimony by the 

prosecutor. Coe, 161 F.3d at 343. And the fact that a witness contradicts herself or changes her 

story in not enough either. Malcum v. Burt, 276 F. Supp. 2d 664, 684 (E.D. Mich. 2003) (citing 

Monroe v. Smith, 197 F. Supp. 2d 753, 762 (E.D. Mich. 2001)). 

 The only evidence that Ingram offers to support his perjury claim is the fact that the 

victim’s trial testimony was inconsistent with her preliminary examination testimony and her prior 

statements to the police. He has not offered any conclusive evidence that the victim’s testimony 

at trial was false. The jury was made aware of the victim’s prior inconsistent statements and chose 

to credit her trial testimony. Ingram is not entitled to relief on his fourth claim. 

E. 

 Next Ingram argues that his multiple criminal sexual conduct convictions violate the 

Double Jeopardy Clause because the conduct occurred during a single episode. He raised that 

claim in his post-conviction motion, and the trial court rejected it. The court referencing the Fifth 

Amendment, proceeded to analyze the issue by comparing the elements of the two crimes — thirdand fourth-degree criminal sexual conduct — to see if they amounted to the same offense. That 

analytical test is sometimes referred to as the Blockburger test, after Blockburger v. United States, 

284 U.S. 299, 304 (1932). That test “inquires whether each offense contains an element not 

contained in the other; if not, they are the same offense and double jeopardy bars additional 
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punishment and successive prosecution.” United States v. Dixon, 509 U.S. 688, 696 (1993); 

Blockburger, 284 U.S. at 304. 

 The trial court correctly noted that the third-degree criminal sexual conduct requires proof 

of sexual penetration, while fourth-degree criminal sexual conduct requires proof of sexual 

contact. Because each crime requires proof of a fact that the other does not, the crimes are different 

and conviction of both does not offend the Double Jeopardy Clause. That decision faithfully 

applied controlling federal law. 

 The Double Jeopardy Clause of the Fifth Amendment states that “[n]o person shall be . . . 

subject for the same offence to be twice put in jeopardy of life or limb . . . .” U.S. Const. amend. 

V. The Clause is “applicable to the States through the Fourteenth Amendment,” Lockhart v. 

Nelson, 488 U.S. 33, 38 (1988), “[a]nd it protects against multiple punishments for the same 

offense,” North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part on other grounds 

by Alabama v. Smith, 490 U.S. 794 (1989). 

What determines whether the constitutional prohibition against multiple 

punishments has been violated is the state legislature’s intent concerning 

punishment. Specifically, “[w]ith respect to cumulative sentences imposed in a 

single trial, the Double Jeopardy Clause does no more than prevent the sentencing 

court from prescribing greater punishment than the legislature intended.” 

Jackson v. Smith, 745 F.3d 206, 211 (6th Cir .2014) (quoting Missouri v. Hunter, 459 U.S. 359, 

366 (1983). 

 Although the Double Jeopardy Clause “protects against multiple punishments for the same 

offense,” Pearce, 395 U.S. at 717, it does not prohibit a state from defining one act of conduct to 

constitute two separate criminal offenses. As the Supreme Court has explained, “[b]ecause the 

substantive power to prescribe crimes and determine punishments is vested with the legislature 

. . . , the question under the Double Jeopardy Clause whether punishments are ‘multiple’ is 
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essentially one of legislative intent.” Ohio v. Johnson, 467 U.S. 493, 499 (1984). Therefore, “even 

if the two statutes proscribe the same conduct, the Double Jeopardy Clause does not prevent the 

imposition of cumulative punishments if the state legislature clearly intends to impose them.” 

Brimmage v. Sumner, 793 F.2d 1014, 1015 (9th Cir. 1986). When “a legislature specifically 

authorizes cumulative punishments under two statutes, . . . a court’s task of statutory construction 

is at an end and the prosecutor may seek and the trial court or jury may impose cumulative 

punishment under such statutes in a single trial.” Hunter, 459 U.S. at 368-69. 

 Here, the state court determined that the legislature intended that discrete offenses will 

warrant separate punishments. The trial court found that “the evidence shows Defendant was 

convicted of three CSC offenses arising out of three separate criminal acts: his sexual penetration 

of the victim, his sexual contact of the victim’s breasts, and his sexual contact of her vagina. 

Defendant was not convicted of the ‘same offense’ twice, as each act for which he was convicted 

constitutes a separate offense.” People v. Ingram, No. 08-031317-FH, at * 5–6 (Saginaw Cty. Cir. 

Ct. Dec. 1, 2015). The Court accepts that factual finding as correct. 28 U.S.C.A. § 2254(e)(1) 

(“In a proceeding instituted by an application for a writ of habeas corpus by a person in custody 

pursuant to the judgment of a State court, a determination of a factual issue made by a State court 

shall be presumed to be correct.”). Under those facts, none of Ingram’s three convictions were for 

the “same offense.” 

 That those convictions arose from the same criminal episode is of no moment here. The 

Double Jeopardy Clause does not prohibit the state from prosecuting a defendant for such multiple 

offenses in a single prosecution. See Ohio v. Johnson, 467 U.S. 493, 500 (1984). 

 Ingram is not entitled to relief on his fifth claim. 
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F. 

 Next, Ingram argues that the trial court incorrectly scored several offense variables when 

calculating his sentencing guidelines. Claims that arise out of a state trial court’s sentencing 

decision are not cognizable upon federal habeas review unless the petitioner can show that the 

sentence exceeded the statutory limits or is wholly unauthorized by law. Lucey v. Lavigne, 185 F. 

Supp. 2d 741, 745 (E.D. Mich. 2001); see Howard v. White, 76 F. App’x 52, 53 (6th Cir. 2003) 

(“A state court’s alleged misinterpretation of state sentencing guidelines and crediting statutes is a 

matter of state concern only.”); see also Cheatham v. Hosey, 12 F.3d 211, 1993 WL 478854, at *2 

(6th Cir. Nov. 19, 1993) (departure from state sentencing guidelines is a state law issue, which is 

not cognizable on federal habeas review). Ingram’s sentence is within the statutory maximum for 

third-degree criminal sexual conduct. See Mich. Comp. Laws §§ 750.520d(2). A sentence 

imposed within the statutory limits is generally not subject to federal habeas review. Townsend v. 

Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797 (E.D. Mich. 1999). 

 A defendant is entitled to be sentenced on the basis of accurate information. A sentence 

violates due process of law if the trial court relied on extensively and materially false information, 

which the defendant had no opportunity to correct through counsel. See Townsend, 334 U.S. at 

741 (holding that a sentence based on “assumptions concerning [defendant’s] criminal record 

which were materially untrue” violated due process). But to obtain relief, a petitioner must show 

that his sentence was “founded at least in part upon misinformation of constitutional magnitude.” 

United States v. Tucker, 404 U.S. 443, 447 (1972). 

 Ingram’s arguments challenging the offense variable scoring are not at all based on the 

information considered by the trial court, but instead he takes issue with the court’s application of 

those variables to the facts found at trial. Ingram has not identified any inaccurate information 
-17- 

that might bring his claim within the scope of a federal constitutional violation. He is not entitled 

to relief. 

G. 

 Next, Ingram contends that he was denied the effective assistance of counsel because his 

trial attorney failed to object to a jury instruction that, he believes, allowed the jury to find him 

guilty of more than one charge even if they were not in unanimous agreement on each of the three 

separate charges (claim VI); failed to cross-examine the victim about the inconsistencies in her 

several statements (claim VII); and failed to conduct a thorough investigation and produce 

documents showing that the victim’s accusations were false (claim VIII). These claims were 

presented for the first time in Ingram’s post-conviction motion. 

 An ineffective assistance of counsel claim has two components. A petitioner must show 

that counsel’s performance was deficient and that the deficiency prejudiced the defense. 

Strickland v. Washington, 466 U.S. 668, 687 (1984). An attorney’s performance is deficient if 

“counsel’s representation fell below an objective standard of reasonableness.” Id. at 688. The 

petitioner must show “that counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687. “Judicial scrutiny of 

counsel’s performance must be highly deferential.” Id. at 689. The Supreme Court has “declined 

to articulate specific guidelines for appropriate attorney conduct and instead [has] emphasized that 

the proper measure of attorney performance remains simply reasonableness under prevailing 

professional norms.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (quoting Strickland, 466 U.S. at 

688) (quotation marks omitted). 

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

to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. 
-18- 

The petitioner must show “a reasonable probability that, but for counsel’s unprofessional errors, 

the result of the proceeding would have been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. Unless a defendant demonstrates 

both deficient performance and prejudice, “it cannot be said that the conviction resulted from a 

breakdown in the adversary process that renders the result unreliable.” Id. at 687. 

 Success on ineffective-assistance-of-counsel claims is relatively rare, because the 

Strickland standard is “‘difficult to meet.’” White v. Woodall, 572 U.S. at 419 (quoting Metrish v. 

Lancaster, 569 U.S. 351, 357-58 (2013) ). And under AEDPA, obtaining relief under Strickland

is even more difficult because “[t]he standards created by Strickland and § 2254(d) are both highly 

deferential and when the two apply in tandem, review is doubly so.” Harrington, 562 U.S. at 105 

(internal citations and quotation marks omitted). This doubly-deferential standard requires the 

Court to give “both the state court and the defense attorney the benefit of the doubt.” Burt v. 

Titlow, 571 U.S. 12, 15 (2013). “[T]he question is not whether counsel’s actions were reasonable,” 

but whether “there is any reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Harrington, 562 U.S. at 105. 

 Ingram’s claim that his counsel should have objected to a jury instruction falls well short 

of the double-deferential standard. Ingram alleges that the jury instruction permitted the jurors to 

find him guilty of more than one charge even if they were not in unanimous agreement on each of 

the three separate charges. The judge gave the following instruction to the jurors: 

The defendant is charged with three counts, that is, one count of the crime of third 

degree criminal sexual conduct and two counts of fourth-degree criminal sexual 

conduct. These are separate crimes, and the prosecutor is charging that the 

defendant committed all of them. You must consider each crime separately in light 

of all the evidence in the case. 

You may find the defendant guilty of all or any combination of these crimes or not 

guilty of any crime. 
-19- 

Trial Tr. at 115, ECF No. 11-7, PageID.411. 

 Ingram acknowledges that this instruction came verbatim from Michigan’s pattern criminal 

jury instructions. See CJI2d 3.20. He says, however, that this instruction was defective because 

it permitted the jury to reach a less than unanimous verdict with respect to each count. 

 It is not clear how he derives that meaning from the text of that instruction. It actually tells 

the jury to “coinsider each crime separately.” Elsewhere, the judge instructed the jurors that their 

verdict would have to be unanimous. Trial Tr. at 119, ECF No. 11-7, PageID.412. And the judge 

previously had instructed the jurors that they should consider all of his instructions together. Id.

at 107, PageID.409. 

 “An attorney’s failure to object to jury instructions is deficient only if the petitioner can 

establish that the instructions were inaccurate.” Daniels v. Lafler, 501 F.3d 735, 743 (6th Cir. 

2007). Ingram has not done so here. Defense counsel did not perform deficiently by not objecting 

to CJI2d 3.20 because the instruction accurately stated the law. Ingram was not prejudiced by the 

non-objection because the instructions in their entirety adequately informed the jurors that their 

verdict would have to be unanimous on each charge. The petitioner is not entitled to relief on his 

sixth claim. 

 Ingram’s seventh and eighth claims display his dissatisfaction with his lawyer’s efforts to 

attack the victim’s credibility. The cross-examination technique counsel employed was 

prototypically a matter of trial strategy, which generally is subject to broad deference and will not 

support a finding of deficient performance. Federal habeas courts do not second-guess judgments 

of that sort. See White, 572 U.S. at 420; Strickland, 466 U.S. at 689 (cautioning that “a court must 

indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance; that is, the defendant must overcome the presumption that, under the 
-20- 

circumstances, the challenged action ‘might be considered sound trial strategy’”) (citation 

omitted). 

 Trial counsel questioned the victim extensively during cross-examination. During the 

cross-examination, the victim admitted that she voluntarily went into the basement with Ingram. 

The victim admitted that Ingram did not have any weapons nor did he hit her. She stated that she 

began screaming and that the house was small enough that people could hear what was happening 

between the floors. She also admitted that after the assault, she asked her father’s girlfriend, Vercie 

Cooper, not to tell anyone, including her father, about the assault. It was only much later on that 

the victim asked Ms. Cooper to tell her father about the sexual assault. The victim admitted that 

she showered before going to the hospital. The victim was confronted by counsel with her 

preliminary examination testimony in which she said she had no bruises, which contradicting her 

trial testimony. The victim denied having sex with Ingram in the past but admitted to picking out 

his ingrown hairs, which Ingram contended was a prelude to their prior consensual sexual 

encounters. Although denying a prior relationship with Ingram, the victim acknowledged that her 

father would have been upset had he learned she was having this type of relationship with Ingram 

because of the age difference. 

 The victim’s father, Bobby Johnson, admitted that Ingram never paid him for the work that 

he had done on Ingram’s house, which was used by counsel to argue a motive for the victim to 

falsely accuse Ingram of sexually assaulting her. Mr. Johnson admitted that on the day in question, 

he saw his daughter on the back porch of the house with some people but that she did not tell him 

that something was wrong. Mr. Johnson admitted that Ingram came over to his house later that 

night to watch television. 
-21- 

 Vercie Cooper admitted on cross-examination that she did not observe any injuries on the 

victim on the day of the assault. Ms. Cooper testified that Ingram did not act unusual towards the 

victim later that evening when he was at the victim’s father’s house. 

 Dr. Michelle McLean was the physician who examined the victim. Dr. McLean only saw 

one small red contusion her. Dr. McLean saw no other injuries on the victim, nor did she find any 

vaginal tears or any other injuries or trauma to the victim’s genital area. 

 Officer Timothy Fink testified that the victim had no injuries when he interviewed her. 

 James Allen testified that he did not hear any screaming coming from the basement, just 

scraping sounds, which would have been consistent with someone painting. Mr. Allen testified 

that when the victim came up from the basement, she did not appear to be upset or crying. Mr. 

Allen did not see Ingram staying close to the victim after they came upstairs. 

 The record amply demonstrates that defense counsel thoroughly developed the testimony 

intended to undermine the victim’s credibility. He cross-examined her at length and pointed to 

inconsistencies in her testimony, her prior statements, and the other evidence adduced at trial. His 

performance measured up well against established professional norms. Nor has Ingram explained 

how any additional impeachment evidence would not have been cumulative of evidence that had 

already been introduced to challenge the victim’s credibility. He was not prejudiced by counsel’s 

omission of additional questions to the victim or the non-production of additional witnesses. That 

evidence would have been cumulative of other evidence and witnesses presented at trial in support 

of Ingram’s claim that the victim had falsely accused him of sexually assaulting her. Wong v. 

Belmontes, 558 U.S. 15, 22-23 (2009); see also United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 

1995). In this case, the jury had significant evidence presented to it that the victim had given 

inconsistent statements, some of her testimony had been contradicted by other witnesses or 
-22- 

evidence, and of her or her father’s possible motives for fabricating sexual assault charges against 

the petitioner. Because the jury was “well acquainted” with evidence that would have supported 

the petitioner’s claim that the victim fabricated these charges, additional evidence in support of the 

petitioner’s defense “would have offered an insignificant benefit, if any at all.” Wong, 558 U.S. 

at 23. The petitioner is not entitled to relief on his seventh or eighth claims. 

H. 

 Finally, Ingram contends that he was denied the effective assistance of appellate counsel 

when his appellate attorney did not raise claims IV through IX on direct appeal. 

 The right to the effective assistance of counsel includes the right to the effective assistance 

of appellate counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387, 396 (1985). To prevail on a 

claim of ineffective assistance of appellate counsel, the petitioner ordinarily must demonstrate that 

appellate counsel’s performance was deficient and that the deficient performance prejudiced the 

appeal. Strickland, 466 U.S. at 687. However, it is well established that a criminal defendant does 

not have a constitutional right to have appellate counsel raise every non-frivolous issue on appeal. 

See Jones v. Barnes, 463 U.S. 745, 751 (1983). 

 This Court has already determined that Ingram’s claims IV through IX lack merit. 

“[A]ppellate counsel cannot be found to be ineffective for ‘failure to raise an issue that lacks 

merit.’” Shaneberger v. Jones, 615 F.3d 448, 452 (6th Cir. 2010) (quoting Greer v. Mitchell, 264 

F.3d 663, 676 (6th Cir. 2001)). Because none of these claims can be shown to be meritorious, 

appellate counsel was not ineffective in his handling of Ingram’s direct appeal. Ingram is not 

entitled to habeas relief on his ineffective assistance of appellate counsel claim. 
-23- 

III. 

 None of the petitioner’s claims presents a basis to issue a writ of habeas corpus under 28 

U.S.C. § 2254(d). The state courts’ decisions in this case were not contrary to federal law, an 

unreasonable application of federal law, or an unreasonable determination of the facts. The 

petitioner has not established that he is presently in custody in violation of the Constitution or laws 

of the United States. 

 Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

 s/David M. Lawson 

 DAVID M. LAWSON 

 United States District Judge 

Date: July 19, 2019 

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 July 19, 2019. 

 s/Susan K. Pinkowski 

 SUSAN K. PINKOWSKI