1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

GEORGE TAYLOR, III, 

Petitioner, 

 vs. 

DAVID FENBY, 

Respondent. 

 

4:15-CV-11064-TGB 

OPINION AND ORDER 

DENYING THE PETITION 

FOR A WRIT OF HABEAS 

CORPUS, DENYING A 

CERTIFICATE OF 

APPEALABILITY, AND 

DENYING LEAVE TO 

PROCEED IN FORMA 

PAUPERIS ON APPEAL 

I. Introduction

 This is a habeas case brought pursuant to 28 U.S.C. § 2254. 

Michigan prisoner George Taylor, III (“Petitioner”) was convicted of firstdegree criminal sexual conduct, MICH. COMP. LAWS § 750.520b; thirddegree criminal sexual conduct, MICH. COMP. LAWS § 750.520d; assault 

with intent to do great bodily harm less than murder, MICH. COMP. LAWS

§ 750.84; and possession of a firearm during the commission of a felony, 

MICH. COMP. LAWS § 750.227b, following a jury trial in the Wayne County 

Circuit Court. He was sentenced to 12 to 30 years imprisonment on the 

first-degree criminal sexual conduct conviction, a concurrent term of 9 to 
2 

15 years imprisonment on the third-degree criminal sexual conduct 

conviction, a concurrent term of 4 to 10 years imprisonment on the 

assault conviction, and a consecutive term of two years imprisonment on 

the firearm conviction in 2012. 

 In his pleadings, Petitioner raises claims concerning the sufficiency 

of the evidence for the criminal sexual conduct convictions and the 

effectiveness of trial counsel. For the reasons stated herein, the Court 

denies the habeas petition, denies a certificate of appealability, and 

denies Petitioner leave to proceed in forma pauperis on appeal. 

II. Facts and Procedural History

 Petitioner’s convictions arise from his physical and sexual assault 

of a woman, Benita Taylor, at his home in Redford Township, Michigan 

on September 19, 2011. The Court adopts Petitioner’s summary of the 

trial facts and testimony, see Pet. Brf., pp. 3-16, to the extent those facts 

are consistent with the record. 

 Following his convictions and sentencing, Petitioner filed an appeal 

of right with the Michigan Court of Appeals raising the same claims 

contained in his current petition, as well as a jury misconduct claim. The 

Michigan Court of Appeals denied relief on those claims but noted that 

the parties agreed that the jury convicted Petitioner of 

aggravated assault rather than assault with intent to commit great 

bodily harm less than murder. The court thus affirmed in part, vacated 
3 

the assault to commit great bodily harm less than murder sentence, and 

remanded for resentencing in accordance with the jury’s verdict. People 

v. Taylor, No. 310134, 2013 WL 3766583 (Mich. Ct. App. July 18, 2013) 

(unpublished). Petitioner then filed an application for leave to appeal 

with the Michigan Supreme Court, which was denied in a standard order. 

People v. Taylor, 495 Mich. 915, 840 N.W.2d 323 (Dec. 23, 2013). 

 Petitioner, through counsel, filed his federal habeas petition on 

March 22, 2015. Petitioner then moved to hold his habeas case in 

abeyance so that he could return to the state courts to exhaust additional 

issues. The Court granted that motion and the case was stayed and 

administratively closed on April 14, 2015. Petitioner subsequently 

elected to abandon state court collateral review and instead moved to 

reopen this case to proceed only on the two exhausted claims raised in 

his original habeas petition. The Court granted that motion and 

reopened the case in 2017. Respondent thereafter filed an answer to the 

habeas petition contending that it should be denied for lack of merit. 

Petitioner filed a reply to that answer. 

III. Standard of Review

 The Antiterrorism and Effective Death Penalty Act of 1996 

(“AEDPA”), codified at 28 U.S.C. § 2241 et seq., sets forth the standard of 

review that federal courts must use when considering habeas petitions 
4 

brought by prisoners challenging their state court convictions. The 

AEDPA provides in relevant part: 

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. 

28 U.S.C. §2254(d) (1996). “A state court’s decision is ‘contrary to’ ... 

clearly established law if it ‘applies a rule that contradicts the governing 

law set forth in [Supreme Court cases]’ or if it ‘confronts a set of facts that 

are materially indistinguishable from a decision of [the Supreme] Court 

and nevertheless arrives at a result different from [that] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting 

Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see also Bell v. Cone, 

535 U.S. 685, 694 (2002). “[T]he ‘unreasonable application’ prong of § 

2254(d)(1) permits a federal habeas court to ‘grant the writ if the state 

court identifies the correct governing legal principle from [the Supreme] 

Court’s decisions but unreasonably applies that principle to the facts’ of 

petitioner’s case.” Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting 
5 

Williams, 529 U.S. at 413); see also Bell, 535 U.S. at 694. However, “[i]n 

order for a federal court find a state court’s application of [Supreme 

Court] precedent ‘unreasonable,’ the state court’s decision must have 

been more than incorrect or erroneous. The state court’s application 

must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 

(citations omitted); see also Williams, 529 U.S. at 409. 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, 521 U.S. 

at 333, n.7); 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)). 

The Supreme Court has emphasized “that even a strong case for relief 

does not mean the state court’s contrary conclusion was unreasonable.” 

Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Pursuant to § 

2254(d), “a habeas court must determine what arguments or theories 

supported or ... could have supported, the state court’s decision; and then 

it must ask whether it is possible fairminded jurists could disagree that 

those arguments or theories are inconsistent with the holding in a prior 

decision” of the Supreme Court. Id. Thus, in order to obtain habeas 
6 

relief in federal court, a state prisoner must 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.” Id; see also White v. Woodall, 

572 U.S. 415, 419-20 (2014). Federal judges “are required to afford state 

courts due respect by overturning their decisions only when there could 

be no reasonable dispute that they were wrong.” Woods v. Donald, 135 

S. Ct. 1372, 1376 (2015). A habeas petitioner cannot prevail as long as 

it is within the “realm of possibility” that fairminded jurists could find 

the state court decision to be reasonable. Woods v. Etherton, 136 S. Ct. 

1149, 1152 (2016). 

 Section 2254(d)(1) limits a federal habeas court’s review to a 

determination of whether the state court’s decision comports with clearly 

established federal law as determined by the Supreme Court at the time 

the state court renders its decision. Williams, 529 U.S. at 412; see also

Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (noting that the 

Supreme Court “has held on numerous occasions that it is not ‘an 

unreasonable application of clearly established Federal law’ for a state 

court to decline to apply a specific legal rule that has not been squarely 

established by this Court”) (quoting Wright v. Van Patten, 552 U.S. 120, 

125-26 (2008) (per curiam)); Lockyer v. Andrade, 538 U.S. 63, 71-72 

(2003). Section 2254(d) “does not require a state court to give reasons 
7 

before its decision can be deemed to have been ‘adjudicated on the 

merits.’” Harrington, 562 U.S. at 100. Furthermore, it “does not require 

citation of [Supreme Court] cases–indeed, it does not even require 

awareness of [Supreme Court] cases, so long as neither the reasoning nor 

the result of the state-court decision contradicts them.” Early v. Packer, 

537 U.S. 3, 8 (2002); see also Mitchell, 540 U.S. at 16. The requirements 

of clearly established law are to be determined solely by Supreme Court 

precedent. Thus, “circuit precedent does not constitute ‘clearly 

established Federal law as determined by the Supreme Court’” and it 

cannot provide the basis for federal habeas relief. Parker v. Matthews, 

567 U.S. 37, 48-49 (2012) (per curiam); see also Lopez v. Smith, 574 U.S. 

1, 2, 135 S. Ct. 1, 2 (2014) (per curiam). The decisions of lower federal 

courts, however, may be useful in assessing the reasonableness of the 

state court’s resolution of an issue. Stewart v. Erwin, 503 F.3d 488, 493 

(6th Cir. 2007) (citing Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 

2003)); Dickens v. Jones, 203 F. Supp. 354, 359 (E.D. Mich. 2002). 

 A state court’s factual determinations are presumed correct on 

federal habeas review. See 28 U.S.C. § 2254(e)(1). A habeas petitioner 

may rebut this presumption only with clear and convincing evidence. 

Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998). Moreover, habeas 

review is “limited to the record that was before the state court.” Cullen 

v. Pinholster, 563 U.S. 170, 181 (2011). 
8 

IV. Discussion

A. Sufficiency of the Evidence Claim

 Petitioner first asserts that he is entitled to habeas relief because 

the prosecution failed to present sufficient evidence to support his 

criminal sexual conduct convictions. Respondent contends that this 

claim lacks merit. 

 The federal 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). The question on a sufficiency of the 

evidence claim is “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). The Jackson standard must be 

applied “with explicit reference to the substantive elements of the 

criminal offense as defined by state law.” Brown v. Palmer, 441 F.3d 

347, 351 (6th Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). 

 A federal habeas court views this standard through the framework 

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

2002). Thus, under the AEDPA, challenges to the sufficiency of the 

evidence “must survive two layers of deference to groups who might view 

facts differently” than a reviewing court on habeas review – the 
9 

factfinder at trial and the state court on appellate review – as long as 

those determinations are reasonable. Brown v. Konteh, 567 F.3d 191, 

205 (6th Cir. 2009). “[I]t is the responsibility of the jury – not the court 

– to decide what conclusions should be drawn from the evidence 

admitted at trial.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam). 

“A reviewing court does not re-weigh the evidence or re-determine 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)). The “mere 

existence of sufficient evidence to convict ... defeats a petitioner’s claim.” 

Id. at 788-89. 

 Under Michigan law, the elements of first-degree criminal sexual 

conduct as relevant to this case are: (1) sexual penetration, (2) through 

force or coercion, and (3) personal injury to the victim or the defendant’s 

use of dangerous weapon. People v. Brantley, 296 Mich. App. 546, 551, 

823 N.W.2d 290 (2012); MICH. COMP. LAWS § 750.520b. The elements of 

third-degree criminal sexual conduct as relevant to this case are: (1) 

sexual penetration, (2) achieved by force or coercion. People v. Vaughn, 

186 Mich. App. 376, 380, 465 N.W.2d 365 (1990); MICH. COMP. LAWS § 

750.520d. The requisite force “encompasses the use of force against the 

victim to either induce the victim to submit to sexual penetration or to 

seize control of the victim in a manner to facilitate the accomplishment 
10 

of sexual penetration without regard to the victim’s wishes.” People v. 

Carlson, 466 Mich. 130, 140, 644 N.W.2d 704 (2002). Force or coercion 

also includes situations where “the actor forces the victim to submit by 

threatening to use force or violence [when] the victim believes the actor 

has the present ability to execute the threat.” People v. Makela, 147 

Mich. App. 674, 682, 383 N.W.2d 270 (1985).

The prosecution must prove beyond a reasonable doubt that the 

defendant committed the charged offense. People v. Kern, 6 Mich. App. 

406, 409, 149 N.W.2d 216 (1967). Direct or circumstantial evidence and 

reasonable inferences arising from that evidence may constitute 

satisfactory proof of the elements of an offense, People v. Jolly, 442 Mich. 

458, 466, 502 N.W.2d 177 (1993), including the identity of the 

perpetrator, Kern, 6 Mich. App. at 409; see also People v. Johnson, 146 

Mich. App. 429, 434, 381 N.W.2d 740 (1985), and the defendant’s intent 

or state of mind. People v. Dumas, 454 Mich. 390, 398, 563 N.W.2d 31 

(1997); see also People v. Nowack, 462 Mich. 392, 402-03, 614 N.W.2d 78 

(2000). 

 Applying the Jackson standard, the Michigan Court of Appeals 

ruled that the prosecution presented sufficient evidence to support 

Petitioner’s first-degree and third-degree criminal sexual conduct 

convictions and denied relief on this claim. The court explained in 

relevant part: 
11 

At trial, the complainant testified that she was forced to 

perform fellatio on defendant twice while at defendant's 

residence. The complainant testified that defendant 

physically assaulted her and then forced her into the hallway 

where she unwillingly performed fellatio on defendant for the 

first time. The complainant testified that she initially refused 

to perform fellatio on defendant but was then coerced to do 

so after defendant retrieved a shotgun from another room 

and threatened her with the weapon. Shortly thereafter, the 

complainant ran to the bathroom to use her telephone to call 

for help. The complainant attempted to lock the bathroom 

door, but before she could, defendant forcibly opened the 

bathroom door. Once in the bathroom, defendant punched the 

complainant in the face, which caused the complainant to fall 

into the bathtub and knock her head on a ceramic soap dish 

that cracked as a result. The complainant testified that 

defendant then ordered her into his bedroom where he forced 

her to perform fellatio on him for the second time. While 

performing fellatio, the complainant recalled that she 

vomited on her shoulder and possibly on defendant's pillow. 

Shortly thereafter, defendant allowed the complainant to 

leave his residence. The complainant reported the incident 

shortly after leaving defendant's residence. At this juncture, 

the complainant's testimony alone was sufficient to sustain 

defendant's convictions of CSC I and CSC III. Szalma, 487 

Mich at 724. 

Defendant's contention of insufficient evidence rests solely on 

issues of witness credibility. That is, he asserts that there 

was no credible or reliable evidence presented to support 

these convictions, particularly considering that the 

complainant provided differing details about the incident 

between the time she initially reported the incident and 

when she provided her statement to the police a few days 

after the incident. However, issues of credibility are left to 

the trier of fact to decide and, despite any perceived 

inconsistencies in the complainant's testimony, the trier of 
12 

fact was nonetheless free to conclude that the complainant 

was credible. People v. Fletcher, 260 Mich App 531, 561; 679 

NW2d 127 (2004). 

Moreover, the prosecution presented strong physical 

evidence to support the complainant's allegations. Several 

witnesses observed the complainant with bruising and 

abrasions on her face and body after the incident occurred 

and photographs of her injuries were presented to the jury. 

At defendant's residence, Redford Police Department 

Detective William Hand observed that the frame of the 

bathroom door was damaged and he found a broken soap dish 

in the bathroom. Hand also located blood on the bathroom 

walls that matched the complainant's DNA sample reference 

and a loaded shotgun in the basement. 

Taylor, 2013 WL 3766583 at *4. 

The state court’s decision is neither contrary to Supreme Court 

precedent nor an unreasonable application of federal law or the facts. 

The evidence presented at trial, viewed in a light favorable to the 

prosecution, established that Petitioner committed the criminal sexual 

conduct crimes. The victim testified that Petitioner physically assaulted 

her in the hallway, threatened her with a shotgun, and forced her to 

perform fellatio on him. When she fled into the bathroom, he physically 

assaulted her, threatened her with more violence, ordered her into the 

bedroom, and forced her to perform fellatio on him a second time. See

3/7/12 Trial Tr., pp. 44-59. Such testimony, if believed, was sufficient to 

support Petitioner’s convictions for first-degree criminal sexual conduct 

and third-degree criminal sexual conduct. A victim’s testimony alone 
13 

can be constitutionally sufficient to sustain a conviction. See Tucker v. 

Palmer, 541 F.3d 652, 658–59 (6th Cir. 2008) (citing cases). Moreover, 

the victim’s injuries and the physical evidence recovered from 

Petitioner’s residence, including the broken items in the bathroom, the 

loaded shotgun, and the victim’s DNA supported the victim’s testimony. 

See 3/7/12 Trial Tr., pp. 194-204. 

 Petitioner challenges the credibility of the victim due to variations 

in her statements and the jury’s evaluation of the evidence and 

testimony presented at trial. However, it is the job of the fact-finder at 

trial, not a federal habeas court, to resolve evidentiary conflicts. 

Jackson, 443 U.S. at 326; Martin v. Mitchell, 280 F.3d 594, 618 (6th Cir. 

2002); see also Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983) (“A 

federal habeas corpus 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.”). The jury’s verdict, and the Michigan Court of Appeals’ 

decision affirming that verdict, were reasonable. Habeas relief is not 

warranted on this claim. 

B. Ineffective Assistance of Counsel Claim

 Petitioner also asserts that he is entitled to habeas relief because 

trial counsel was ineffective for failing to file a pre-trial notice to 
14 

introduce evidence of Petitioner’s and the victim’s pre-existing sexual 

relationship as required by Michigan’s rape shield statute. 

 The Sixth Amendment to the United States Constitution 

guarantees a criminal defendant the right to the effective assistance of 

counsel. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme 

Court set forth a two-prong test for determining whether a habeas 

petitioner has received ineffective assistance of counsel. First, a 

petitioner must prove that counsel’s performance was deficient. This 

requires a showing that counsel made errors so serious that he or she 

was not functioning as counsel as guaranteed by the Sixth Amendment. 

Strickland, 466 U.S. at 687. Second, the petitioner must establish that 

counsel’s deficient performance prejudiced the defense. Counsel’s errors 

must have been so serious that they deprived the petitioner of a fair trial 

or appeal. Id. 

 To satisfy the performance prong, a petitioner must identify acts 

that were “outside the wide range of professionally competent 

assistance.” Id. at 690. The reviewing court’s scrutiny of counsel’s 

performance is highly deferential. Id. at 689. There is a strong 

presumption that trial counsel rendered adequate assistance and made 

all significant decisions in the exercise of reasonable professional 

judgment. Id. at 690. The petitioner bears the burden of overcoming the 

presumption that the challenged actions were sound trial strategy. 
15 

 As to the prejudice prong, a petitioner must show that “there is a 

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

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

reasonable probability is one that is sufficient to undermine confidence 

in the outcome of the proceeding. Id. “On balance, the benchmark for 

judging any claim of ineffectiveness must be whether counsel’s conduct 

so undermined the proper functioning of the adversarial process that the 

[proceeding] cannot be relied on as having produced a just result.” 

Strickland, 466 U.S. at 686. 

 The Supreme Court has confirmed that a federal court’s 

consideration of ineffective assistance of counsel claims arising from 

state criminal proceedings is quite limited on habeas review due to the 

deference accorded trial attorneys and state appellate courts reviewing 

their performance. “The 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 and end citations 

omitted). “When § 2254(d) applies, the question is not whether counsel’s 

actions were reasonable. The question is whether there is any 

reasonable argument that counsel satisfied Strickland’s deferential 

standard.” Id. 

 Applying the Strickland standard, the Michigan Court of Appeals 

ruled that Petitioner failed to establish the factual predicate for this 
16 

claim and failed to show that any error by counsel was outcome 

determinative and denied relief on this claim. The court explained in 

relevant part: 

MCL 750.520j, which governs the admission of evidence 

concerning a victim's sexual conduct, provides, in relevant 

part: 

(1) Evidence of specific instances of the victim's 

sexual conduct, opinion evidence of the victim's 

sexual conduct, and reputation evidence of the 

victim's sexual conduct shall not be admitted 

under sections 520b to 520g unless and only to the 

extent that the judge finds that the following 

proposed evidence is material to a fact at issue in 

the case and that its inflammatory or prejudicial 

nature does not outweigh its probative value: 

(a) Evidence of the victim's past sexual conduct 

with the actor. 

 * * * 

(2) If the defendant proposes to offer evidence 

described in subsection (1)(a) ..., the defendant 

within 10 days after the arraignment on the 

information shall file a written motion and offer 

of proof.... 

Regarding the notice requirement, “[t]his Court has held that 

failure to comply with the notice requirement of MCL § 

750.520j does not necessarily preclude the admission of 

evidence of past sexual relations between a victim and a 

defendant.” Dixon, 263 Mich App at 399. If a defendant fails 

to file a notice of intent, “the trial court must determine 

whether the evidence is admissible on a case-by-case basis 

considering whether the defendant's timing of the offer to 
17 

produce such evidence suggests an improper tactical purpose, 

and whether the probative value of the evidence outweighs 

its prejudicial effect.” Id. at 399–400. 

During his opening statement, defense counsel indicated that 

defendant and the complainant had an existing sexual 

relationship. Defense counsel also stated that the 

complainant consented to performing fellatio on defendant on 

the evening at issue. Further, defense counsel expected the 

complainant to deny performing fellatio on defendant on 

three occasions before the incident occurred. Before the 

beginning of proofs, the prosecution objected to defense 

counsel's opening statement on the ground that defense 

counsel had failed to file the required notice of intent 

required by the rape shield statute. Defense counsel 

countered that he was not required to file such notice in this 

instance. The trial court held that notice was required, but 

provided defense counsel an opportunity to provide legal 

authority to support his position. Evidently, such authority 

was not presented, and defense counsel did not crossexamine the complainant about her and defendant's alleged 

sexual relationship. 

In addressing a similar matter, this Court concluded that 

“[d]efense counsel was constitutionally deficient for failing to 

file the required notice of intent to produce this evidence,” 

especially where such evidence would be highly probative 

and it was “clear from the record ... that the trial court 

determined to exclude this evidence based on defense 

counsel's failure to file a notice of intent.” Id. at 400. As such, 

defense counsel's performance was, at the very least, 

constitutionally deficient for failing to file the required notice 

of intent where he intended to cross-examine the 

complainant about her alleged sexual relationship with 

defendant. But, although evidence of a consensual sexual 

relationship between defendant and the complainant could 

have been highly probative, id., defendant has failed to 
18 

establish the factual predicate for this claim and, further, 

that defense counsel's failure to file a notice to introduce such 

evidence in this instance deprived him of a substantial 

defense. Carbin, 463 Mich at 600; Chapo, 283 Mich App at 

371. It is not apparent from the record, and defendant has 

not explained on appeal, how defense counsel sought to 

establish that he and the complainant had an existing 

consensual sexual relationship before the incident occurred 

and there is no direct evidence of such a relationship.3

Nevertheless, the prosecution provided strong evidence that 

supported the complainant's allegations, including the 

complainant's blood located in the bathroom, a loaded 

shotgun in the basement, and testimony regarding the 

complainant's physical injuries. Therefore, defendant has 

failed to show that defense counsel's error was outcome 

determinative. 

Taylor, 2013 WL 3766583 at *1-2 (footnote in original). 

 The state court’s decision is neither contrary to Supreme Court 

precedent nor an unreasonable application of federal law or the facts. 

Assuming that trial counsel erred by failing to file the aforementioned 

notice, Petitioner fails to establish that he was prejudiced by counsel’s 

conduct. First, as discussed by the Michigan Court of Appeals, 

Petitioner fails to provide factual support for his allegation of prejudice, 

i.e., evidence of a prior, existing sexual relationship between Petitioner 

and victim. See, e.g, Vinson v. McLemore, 226 F. App’x 582, 584 (6th Cir. 

 

3 Defendant did present the testimony of Jowanna Mitchell, who implied the existence 

of a relationship between defendant and the complainant. There was also a brief 

reference, during defendant's interview, to a relationship between defendant and the 

complainant. 
19 

2007) (“The key problem with Vinson’s claim is that he has not 

established the factual predicate for bringing it.”). To be sure, counsel 

acknowledged at the time of trial that the victim would deny that she 

had performed fellatio on Petitioner three times before the incident at 

issue. See 3/6/12 Trial Tr., p. 122. 

 Second, despite the fact that counsel failed to file the notice, some 

evidence indicative of a prior sexual relationship between Petitioner and 

the victim was presented at trial. Jowanna Mitchell testified that she 

saw Petitioner and the victim go into a bedroom alone for about an hour 

when they were at a baby shower, see 3/9/12, Trial Tr., pp. 19-20. 

Detective Hand testified about his pre-trial interview with Petitioner 

and stated that Petitioner told him “about the amount of times he had 

oral sex” with the victim. Detective Hand also recalled suggesting that 

Petitioner and the victim were “kind of seeing each other on the side.” 

See 3/8/12 Trial Tr., pp. 32-33. During closing arguments, counsel also 

discusses the extent of the parties’ existing relationship and references 

Petitioner’s video recording in which he states that he and the victim 

had consensual sex three times before the date of the incident. See 3/9/12 

Trial Tr., p. 48. 

 Third, the prosecution presented significant evidence of Petitioner’s 

guilt, including the victim’s testimony, her physical injuries, and the 

evidence recovered from Petitioner’s residence, including the victim’s 
20 

DNA, the broken items in the bathroom, and the shotgun from the 

basement. Given such circumstances, Petitioner fails to show that he 

was prejudiced by trial counsel’s conduct in this regard. More 

importantly, for purposes of habeas review, the Court cannot conclude 

that the Michigan Court of Appeals’ decision to that effect is 

unreasonable. Habeas relief is not warranted on this claim. 

V. Conclusion

 For the reasons stated, the Court concludes that Petitioner is not 

entitled to federal habeas relief on his claims. Before Petitioner may 

appeal this decision, a certificate of appealability must issue. See 28 

U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability 

may issue only if the petitioner makes “a substantial showing of the 

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

denies habeas relief on the merits, the substantial showing threshold is 

met if the petitioner demonstrates that reasonable jurists would find the 

court’s assessment of the claim debatable or wrong. Slack v. McDaniel, 

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

demonstrating that ... jurists could conclude the issues presented are 

adequate to deserve encouragement to proceed further.” Miller-El v. 

Cockrell, 537 U.S. 322, 327 (2003). Petitioner makes no such showing. 

Accordingly, the Court DENIES a certificate of appealability. 
21 

 Lastly, the Court DENIES Petitioner leave to proceed in forma 

pauperis on appeal as an appeal cannot be taken in good faith. See FED.

R. APP. P. 24(a). This case is CLOSED. 

IT IS SO ORDERED. 

DATED: January 31, 2020. 

BY THE COURT: 

/s/Terrence G. Berg 

TERRENCE G. BERG 

United States District Judge