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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

WILLIAM EDWARD LAVELY, 

 Petitioner, Case Number 2:15-CV-11245 

 HON. GEORGE CARAM STEEH 

v. UNITED STATES DISTRICT JUDGE 

KEVIN LINDSEY, 

 Respondent. 

________________________/ 

OPINION AND ORDER DENYING THE PETITION FOR WRIT OF 

HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF 

APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS 

 William Edward Lavely, (“Petitioner”), confined at the Cotton 

Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of 

habeas corpus with this Court pursuant to 28 U.S.C. § 2254, challenging 

his convictions for two counts of first-degree criminal sexual conduct, 

M.C.L.A. 750.520b(1)(A). For the reasons that follow, the petition for writ of 

habeas corpus is DENIED WITH PREJUDICE. 

I. Background 

 Petitioner’s granddaughters, KE and LL, testified that petitioner had 

sexually penetrated them when they were under 13 years of age.1 

 

1 Because the victims were minors at the time of the sexual assault, the Court will refer to these 

individuals by their initials only, as the Michigan Court of Appeals did in their opinion. See Fed. R. Civ. P. 

5.2(a). 
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Petitioner denied sexually assaulting the victims. The jury chose to believe 

the victims.

 Petitioner’s conviction was affirmed. People v. Lavely, No. 312389, 

2013 WL 5989671 (Mich.Ct.App. Nov. 12, 2013); lv. den. 495 Mich. 994 

(2014). 

 Petitioner filed a petition for writ of habeas corpus, which was held in 

abeyance so that petitioner could exhaust additional claims. Lavely v. 

Winn, No. 2:15-cv-11245, 2015 WL 2084675 (E.D. Mich. May 5, 2015). 

 Petitioner’s post-conviction motion was denied by the trial court. 

People v. Lavely, No. 11-4322-FC (Clare Cty.Cir.Ct. Aug. 2, 2016). 

Petitioner was denied leave to appeal. People v. Lavely, No. 334604 

(Mich.Ct.App. Mar. 6, 2017); lv. den. 501 Mich. 981 (2018). 

 Petitioner’s case has now been reopened. Petitioner seeks habeas 

relief on the following ground: (1) Petitioner was denied the effective 

assistance of trial counsel. 

II. Standard of Review 

 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 
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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 

relevant state-court decision applied clearly established federal law 

erroneously or incorrectly.” Id. at 410-11. “[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 
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decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough 

v. Alvarado, 541 U.S. 652, 664 (2004)). 

III. Discussion 

 Petitioner argues he was denied the effective assistance of trial 

counsel. 

 To prevail on his ineffective assistance of counsel claims, petitioner 

must show that the state court’s conclusion regarding these claims was 

contrary to, or an unreasonable application of, Strickland v. Washington, 

466 U.S. 668 (1984). See Knowles v. Mirzayance, 556 U.S. 111, 123 

(2009). Strickland established a two-prong test for claims of ineffective 

assistance of counsel: the petitioner must show (1) that counsel’s 

performance was deficient, and (2) that the deficient performance 

prejudiced the defense. Strickland, 466 U.S. at 687. 

 Petitioner first claims that trial counsel was ineffective in eliciting 

damaging information from the victims during cross-examination. The 

Michigan Court of Appeals rejected the claim: 

Defense counsel’s inquiry of KE regarding inappropriate things 

that defendant had said to her was merely an attempt to clarify

KE’s direct examination testimony that defendant “says 

inappropriate things sometimes.” When asked whether 

defendant’s comments annoyed her, KE responded 

affirmatively. Having KE reiterate that defendant made 

comments that annoyed her allowed the jury to infer some level 

of hostility that could cause her to fabricate allegations against 
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him, a matter that counsel explored during his closing 

argument. Thus, defense counsel’s inquiry appeared to 

constitute sound trial strategy. 

With respect to defense counsel’s questioning of LL regarding 

her allegation that defendant had sexually assaulted her in 

Detroit, the record shows that counsel was attempting to 

discredit LL. LL testified that defendant sexually assaulted her 

in Detroit approximately 25 to 30 times while he was babysitting 

her. To discredit her allegation and undermine LL’s credibility in 

general, counsel questioned defendant’s wife regarding 

whether defendant had ever babysat LL in Detroit. Defendant’s 

wife denied that defendant had ever babysat LL in Detroit. She 

explained that LL’s other grandparents had cared for LL as 

needed at that time in LL’s life, which LL’s aunt and brother 

confirmed. During closing argument, counsel used LL’s 

testimony about the alleged sexual abuse in Detroit to call into 

doubt her character for truthfulness. Thus, counsel’s 

questioning constituted sound trial strategy. 

In addition, regarding defense counsel’s inquiry of LL to 

expound on what she meant when she testified that defendant’s 

attempts to penetrate her “hurt,” counsel used that testimony to 

highlight the lack of physical evidence: Counsel argued during 

closing argument that although LL maintained that it “hurt,” 

there was no report evidencing scarring, tearing, or anything of 

the sort. Thus, again, counsel’s questioning constituted sound 

trial strategy. 

People v. Lavely, 2013 WL 5989671, at * 2 (internal citations omitted). 

 Counsel’s performance in eliciting allegedly prejudicial testimony from 

the victims was not deficient, so as to support petitioner’s ineffective 

assistance of counsel claim; the questions were part of a legitimate 

strategy to cast doubt on the prosecution’s case or the victims’ credibility. 
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See Campbell v. U.S., 364 F.3d 727, 734-35 (6th Cir. 2004); See also 

Urban v. Ohio Adult Parole Auth., 116 F. App’x. 617, 622 (6th Cir. 2004). 

 Petitioner next claims that trial counsel was ineffective for calling a 

defense witness who offered damaging testimony against petitioner. The 

Michigan Court of Appeals rejected this claim: 

Defendant also contends that defense counsel called witnesses 

whose testimony aided the prosecution. Defendant cites to the 

testimony of “KA,” KE’s sister, who testified that the way that

defendant said things “sometimes was kinda creepy.” She also 

maintained that defendant made inappropriate comments about 

her physical appearance. Contrary to defendant’s argument, 

the prosecution, rather than defense counsel, elicited that 

testimony from KA on cross-examination. During his redirect 

examination of KA, defense counsel attempted to mitigate the 

effect of that testimony by asking KA whether defendant is “an 

outgoing, joking-type individual” to which KA responded 

affirmatively. Thus, counsel’s questions were strategically 

designed to mitigate the effect of the prosecutor’s crossexamination of KA. Moreover, on direct examination, defense 

counsel elicited testimony that KA had no memory of an 

incident that allegedly occurred in defendant’s bedroom. KE 

maintained that KA had been present during the incident. 2

Thus, defense counsel elicited testimony from KA that assisted 

defendant. 

People v. Lavely, 2013 WL 5989671, at * 2. 

 Petitioner cannot show that trial counsel was ineffective for calling KA 

as a witness, since counsel’s decision to call KA as a defense witness was 

part of a strategy to obtain favorable information from this witness. See 

 

2 The incident forms the factual basis of one of defendant's convictions. (Footnote original). 
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Awkal v. Mitchell, 613 F.3d 629, 642-43 (6th Cir. 2010). Counsel did, in 

fact, obtain favorable evidence from KA. This claim is without merit. 

 Petitioner next contends that counsel was ineffective in his 

questioning of KE’s mother. 

 The Michigan Court of Appeals rejected this claim: 

Defendant next argues that defense counsel’s questioning of 

KE’s mother, “Laurie,” corroborated an incident that KE had 

testified occurred in defendant’s bathroom. Laurie testified that 

when KE was approximately six years old she told Laurie that 

defendant had wiped her vagina after she had used the toilet 

and wanted to talk to her about sex. Counsel asked Laurie 

whether she had taught KE to tell her if anything of a sexual 

nature occurred to KE. Laurie responded affirmatively and then 

testified that KE had told her about the incident in the bathroom. 

Notably, Laurie did not testify that KE had told her about any 

other alleged inappropriate conduct that occurred when KE was 

a child. Moreover, Laurie’s testimony regarding the bathroom 

incident was at odds with Laurie’s sister’s testimony. Laurie 

denied that defendant had helped KE wipe her “tushie” and 

claimed that defendant had helped KE wipe her vagina. 

Laurie’s sister, “Lisa,” on the other hand testified that Laurie 

had asked her to talk to KE because KE told Laurie that 

defendant had helped wipe her butt in the bathroom and it 

made KE uncomfortable. Thus, defense counsel’s questioning 

of Laurie and Lisa assisted defendant’s case by casting doubt 

on the credibility of both KE and Laurie regarding the alleged 

bathroom incident. Further, counsel elicited testimony from 

Laurie that she had never observed anything to make her think 

that defendant had interacted inappropriately with KE. 

People v. Lavely, 2013 WL 5989671, at * 3. 

 Counsel was not ineffective in asking these questions to KE’s mother, 

because counsel was attempting to elicit this information to cast doubt on 
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the prosecution’s case or the credibility of the victims. Campbell v. U.S., 

364 F.3d at 734-35; Urban v. Ohio Adult Parole Auth., 116 F. App’x. at 622. 

 Petitioner next contends that trial counsel was ineffective for eliciting 

testimony from petitioner’s sister that she had been sexually abused by 

their father until she was eleven years old. The Michigan Court of Appeals 

rejected this claim: 

Defendant argues that such testimony was not helpful because 

it is known that sexual abuse runs in families. The record shows 

that defense counsel relied on defendant’s sister’s history of 

sexual abuse and her experience as a nurse to strengthen her 

testimony that she never suspected that either KE or LL had 

been abused. Calling on defendant’s sister’s personal 

knowledge in such fashion was a reasonable strategic decision. 

People v. Lavely, 2013 WL 5989671, at * 3. 

 Counsel’s decision to ask petitioner’s sister to testify about her own 

sexual abuse at the hands of their father in order to explain why she did not 

believe that the victims had been sexually abused was not ineffective 

because counsel did this to obtain favorable information from this witness. 

Awkal, 613 F.3d at 642-43. 

 Petitioner next contends that trial counsel was unprepared to 

question one of petitioner’s character witness, Therese Sandomierski, 

because counsel was unaware of Sandomierski’s professional credentials 

which would have permitted her to be qualified as an expert witness in 
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order to offer her expert opinion that petitioner had not sexually assaulted 

the victims. The Michigan Court of Appeals rejected this claim: 

Defendant also asserts that defense counsel was unprepared 

to question Therese Sandomierski, one of defendant’s 

character witnesses. Sandomierski testified that Lisa is her 

closest friend and that defendant and his wife are like family to 

her. On cross-examination the prosecutor elicited testimony 

regarding Sandomierski’s education, and Sandomierski testified 

that she has a doctorate degree in school psychology. On 

redirect examination defense counsel sought to qualify 

Sandomierski as an expert, but the trial court denied the 

request. Because defense counsel called Sandomierski as a 

character witness, which Sandomierski confirmed in the 

beginning of her testimony, he cannot be faulted for being 

unaware of her professional credentials. In any event, the trial 

court permitted Sandomierski to offer her lay opinion that, 

looking back at the time that she spent with defendant’s family, 

there was no indication that defendant was sexually abusing 

either KE or LL. Thus, Sandomierski’s opinion was admitted as 

evidence, albeit her lay opinion rather than her expert opinion

was admitted. Accordingly, defendant has failed to show that 

trial counsel’s performance fell below an objective standard of

reasonableness. 

People v. Lavely, 2013 WL 5989671, at * 3. 

 Petitioner cannot prevail on his claim that trial counsel was ineffective 

for failing to adequately prepare for Sandomierski’s testimony because he 

failed to show how additional preparation would have been beneficial to his 

defense. See Martin v. Mitchell, 280 F. 3d 594, 607-08 (6th Cir. 2002). 

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

qualify Sandomierski as an expert in the area of sexual abuse, because 
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she was permitted to offer her opinion, albeit as a lay witness, that she saw 

no evidence that petitioner was sexually abusing his granddaughters. 

 Petitioner next claims that counsel was ineffective for asking

petitioner’s wife questions about their sex life. The Michigan Court of 

Appeals rejected this claim: 

Defendant’s wife testified that they used to engage in sexual 

intercourse three or four times a week, but that decreased to 

once every two months approximately 20 years previously 

because defendant began experiencing chest pains and other 

ailments. When asked whether it was painful for defendant to 

engage in sexual intercourse, defendant’s wife responded 

affirmatively because defendant would have chest pains. 

Defendant fails to indicate how his wife’s testimony harmed his

case. In fact, counsel used the testimony to discredit LL’s claim 

that defendant sexually assaulted her approximately 20 or 30 

times in his Detroit home. Thus, defendant’s challenge lacks 

merit. 

People v. Lavely, 2013 WL 5989671, at * 4. 

 Conclusory allegations of ineffective assistance of counsel do not 

provide a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 

(6th Cir. 1998). Petitioner offers no reasons why defense counsel’s 

questions to petitioner’s wife were deficient or prejudicial, particularly where 

petitioner’s wife’s testimony was used to discredit LL’s testimony. 

 Petitioner lastly claims that trial counsel was ineffective for allowing 

him to testify and to inadequately prepare petitioner for the witness stand. 
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 Under Strickland, a court must presume that decisions by counsel as 

to whether to call or question witnesses or present evidence are matters of 

trial strategy. See Hutchison v. Bell, 303 F. 3d 720, 749 (6th Cir. 2002). 

Petitioner bears the burden of proving that counsel’s decision to let him 

testify could not be considered sound trial strategy under the 

circumstances. See Carter v. United States, 160 F. Supp. 2d 805, 812 

(E.D. Mich. 2001). It was not unreasonable for counsel to believe, 

particularly in light of the facts in this case, that petitioner was unlikely to be 

acquitted unless he took the stand and explained his side of the story. See 

Flamer v. State of Delaware, 68 F. 3d 710, 730-731 (3rd Cir. 1995); See 

also United States v. Johnson-Wilder, 29 F. 3d 1100, 1105 (7th Cir. 1994). 

To the extent that petitioner claims that counsel did not adequately prepare 

him for the witness stand, this claim fails because petitioner failed to show 

how additional preparation time would have improved his testimony. See 

Hutchison v. Bell, 303 F. 3d at 748. 

IV. Conclusion 

 The petition for writ of habeas corpus is denied. The Court will also 

deny a certificate of appealability to petitioner. In order to obtain a 

certificate of appealability, a prisoner must make a substantial showing of 

the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate 
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this denial, the applicant is required to show that reasonable jurists could 

debate whether, or agree that, the petition should have been resolved in a 

different manner, or that the issues presented were adequate to deserve 

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-

84 (2000). When a district court rejects a habeas petitioner’s constitutional 

claims on the merits, the petitioner must demonstrate that reasonable 

jurists would find the district court’s assessment of the constitutional claims 

to be debatable or wrong. Id. at 484. “The district court must issue or deny 

a certificate of appealability when it enters a final order adverse to the 

applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 

2254. 

 For the reasons stated in this opinion, a certificate of appealability is 

denied because petitioner failed to make a substantial showing of the 

denial of a federal constitutional right. Myers v. Straub, 159 F. Supp. 2d 

621, 629 (E.D. Mich. 2001). The Court also denies petitioner leave to 

appeal in forma pauperis, because the appeal would be frivolous. Id. 

V. ORDER 

 IT IS ORDERED that: 

(1) the Petition for a Writ of Habeas Corpus is DENIED WITH 

PREJUDICE.

 (2) a Certificate of Appealability is DENIED. 
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(3) Petitioner is DENIED leave to appeal in forma pauperis. 

Dated: October 9, 2019 

 s/George Caram Steeh 

 GEORGE CARAM STEEH 

 UNITED STATES DISTRICT JUDGE 

 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

October 9, 2019, by electronic and/or ordinary mail and also 

on William Lavely #848603, G. Robert Cotton Correctional 

Facility, 3500 N. Elm Road, Jackson, MI 49201. 

s/Barbara Radke 

Deputy Clerk