NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0700n.06 No. 12-2121 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ADRI AN STEVENSON, Petitioner-Appellant,

v.

DEB RA SCUTT, W arde n, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : SI L ER, MOORE, and ROGERS, Circuit J udg es. SILE R , Circuit J udg e. Adri an S tevenson petiti oned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challeng ing his conviction under Michig an law for first-deg ree criminal sexual conduct. The district court denied his app l i ca t i o n fo r the writ, but g rante d a cer tificate of appea lability on the two claims Stevenso n ra i s ed : (1) whether his due proce ss notice rig hts wer e violated, and (2) whether he was depr i ved of eff ective assistance of counsel. For the following

rea sons, we AF F IRM the district court’s de nial of Stevenson’s pe tition. I

. The key fac t u n d er l y ing Stevenson’s two claims is that the criminal information by which he was ch ar ged ref

ere nced an ambig uous time period: “winter 2004.” Since a single winter

nece ssarily falls within two separ ate cale nd ar y ear s, it was unclea r whether the information implicated the winter

of 2003-2004 or

that of 2004-2005.No. 12-2121

Steve nson v. Scutt At trial in 2006, the victim, T.G., positively identified Stevenson as h i s attacke r, but had troub l e re ca l ling ex actly when the assault occurre d, noting only that he had been eleven y ear s old and that it had happene d “in the wintertime.” T.G. was born in September 1993, and, thus, did not turn eleve n until September 2004. Neve rtheless, the prosec ut o r p u rs u ed a theory at trial that the incident occur

red in the winter of 2003-2004. Although defe nse counsel offe red some evidenc e at trial that Stevenson lived in a differ ent state than T.G. during the 2003-2004 winter, the jury ultimatel y b el i ev ed T.G.’s acc ount reg arding the details of the attack. Following his conviction, Stevenson was se ntence d to 45 to 180 months ’ imprisonment. During appellate revie w, Stevenson was appointed new counsel and filed a motion for a new trial contending that his trial counsel had been ineffe ctive for failing to substantiate his alibi defe nse with school attendanc e rec ords. When appellate counsel obtained those rec ords, confirming Stevenson’s attendanc e in Pennsy lvania during the 2 003-2004 school y ear , the prosec utor

asser ted–contra

ry to the theory argued at trial–that the sexual assault actua lly occur red during the winter of 2004-2005. At that point, Stevenson abandone d his reque st for an evidentiar y hear ing on his in ef fe ct i v e-a ssistance claim and asser ted that he was entitled to a new trial beca use the prosec utor’s post-trial cha ng e of the ory constituted a due proce ss violation. The trial c ourt found, despite t he prosecutor’s chang e in position, that Stevenson s t i l l h ad adequa te not ice of the charg e ag ainst him beca

use (1) “winter 2004" could ref er to the winter of 2004-2005 and (2) T.G. testified that the incident occur

red when he wa s 11 y ear s old and in the fourth g rade , pointing to the winter of 2004-2005.

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Steve nson v. Scutt Stevenson t h en fi l ed an appea l in the Michig an Court of Appea ls, arguing that the prosec ution’s post-conviction chang e of theory violated his due proce ss rig hts and that trial counsel

was ineffe ctive for failing to investigate his alibi defe nse further and for failing to demand a bill of particula rs. Finding that Stevenson had adequate notice of the charg es and that he was not prejudice d by trial counsel’s perf ormanc e, the court af

fi rm ed Stevenson’s convictions. People v. Steve nson , No. 270380, 2007 WL 4548071 (Mich. Ct. App. Dec

. 27, 2007). The Michig an Supreme Court denied leave to appea l. People v. Steve nson , 748 N.W.2d 848 (Mich. 2008). Stevenson then filed his petition for habe as re lief in the district court, r aising the same two issues. I I

. We r eview the district court’s de nial of Stevenson’s ha beas c orpus petition de novo, Amos

v. Renico , 683 F.3d 720, 726 (6t h Cir. 2012), and its fac tual finding s for clea r err or, Crist ini v. McKee , 526 F.3d 888, 897 (6th Cir. 2008). Since the state court decide d the merits of Stevenson’s habea s claims, fede ral habea s revie w is subject to th e d ef er enti al standard that applies under the An t i t errorism and Effe ctive Death Penalty Act of 1996 (AEDPA) , 28 U.S.C. § 2254 (d ). Acc ording ly , we may

not gr ant the wr it unless the adjudication on the mer its in st ate c ourt either (1) re s u l t ed in a decision that was contra ry to, or involved an unrea sonable application of, clea

rly established Fe dera l law, as deter mined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unrea s o n ab l e d et ermination of the fac ts in li g ht of the evide nce pr esente d in the State court proc eeding

.

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Steve nson v. Scutt 28 U.S.C. § 2254(d). This provision “pre serve s au t hority to issue the writ in case s wher e there i s

no possibili ty fairminded jurists could disag ree that the state cour t ’s decision conflicts with [t he Supreme Court’s] prec edents.” Harrington v. Richter , 131 S. Ct . 770, 786 (2011). I I I

. Stevenson cites Jack

son v. Virginia , 443 U.S. 307 (1979), and a rg ues that the prose cutor’s post-trial chang e of theory reg arding the date of the offe nse constitutes a depriva tion of his constitutional rig ht to “notice and a meaning ful opportunity to defe nd.” Id. at 314. I n reje cting that

ar g ument, the Michig an Court of Appea ls noted that Michig an law g ives wide disc re t i o n fo r amending a cr iminal information unless a def endant will be pr ejudiced. An information may be amende d at any time befor e, during , or afte r trial to cure any defe ct, imperfe ction, or omission in form or substance, including a varia nce betwee n the information and the p ro o fs , as l o ng as the acc used is not prejudice d by the amendment a

nd the amendme nt does not char g e a ne w cr ime. People v. Higuera , 625 N.W.2d 444, 453 (Mich. Ct. App. 2001) (citing Michig an Compil ed L aws § 767.76). The appellate court held that Stevenson had failed to show that he was prejudice d by the prosec utor’s chang ed position abou t t he date of the incident. I n fac t, the court noted, the prosec utor’s theory involving the wrong time period likely helped Steven s o n , as h e was able to prese nt an alibi defe nse he otherwise could not have. Stevenson lived in Detroit in the same building as the victim during the winter of 2004-2005. Wit h respe ct to Stevenson’s due proce ss argument, the Michig an Court of Appea ls reje cted his contention that the lack of notice preve nted him from forming a defe nse. The police repor t listed T.G.’s date of birth as September 13, 1993, and T.G. testified that the attack occur red when he was

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Steve nson v. Scutt 11 y ear s old and in the fourth g rade

. T.G. di d not turn 11 unt i l September 2004, so his testimony sug g ests that the incident took place in the winter of 2004-2005. At the time of his testimony at the preliminary hear ing in Dec ember 2005, T.G. was 12 and in the fifth g rade

. Acc ording ly , unless T.G. had been held back in school, he would have spent the winter of 2004-2005 in the fourth g rade

. The Michig an Court of Appea ls found that, taken collectively , these fa ct s p ro v ided Stevenson with sufficie nt notice to formulate a defe nse. I n considering Stevenson’s habea s petition, the district c ourt reje cted his a rg ument that the state court’s decision was an unrea sonable application of Supreme Court prec edent. Quoting Mira

v. Marshall , 806 F.2d 636, 639 (6th Cir. 1986), the court rea soned that “[a]n indictment that ‘fa irly but imperfe ctly informs the accused of the offe nse for which he is to be tried does not g ive rise to

a constitutional issue cog nizable in habea s proce eding s.’” Steve nson v. Curtin , No. 09-13358, 2012 WL 3079247, at *4 (E.D. Mich. J uly 30, 2012). The district court also noted that an acc used ’s constitutional right to notice c an be satisfied by other means–not just the content of an indictment or informa tion. Id. Whil e the district court wa s not convinced tha t the state cour t of appe als was

corr ect about the adequa cy of the notice provided to Stevenson, it never theless denied habea s relief beca use the state decision was “not so un re as onable that fairminded jurists could not disag ree ” reg arding its corre ctness. Id. at *5. Stevenson argues to this court that he is entitled to habea s relief beca use the state court’s resolution of his due proce ss claim is an unrea sonable application of Supreme Court p re ce dent. Stevenson fails to identify , howeve r, the specific prec edent on which he relies. I ndeed, he cites no

case with a fac t pattern analog ous to his own. Consequently , “[u] nder AEDPA, if there is no clea rly - 5 -No. 12-2121

Steve nson v. Scutt established Fe d e r a l la

w, as deter

mined by the Supreme Court that supports a habea s petitioner’s leg al arg ument, the arg ument must fail.” Miskel v. Karnes , 397 F.3d 446, 453 (6th Cir. 2005) (internal quotation marks omitted). The arguments Stevenson does make–whic h are based solely on Supreme Court opinions that stand for g ener al principles of due proce ss–are unpersua sive. Finally , case law apply ing fac ts simil ar to Stevenson’s case supports the denial of habea s relief

. See, e.g. , Valentine

v. Konteh , 395 F.3d 626, 632 (6th Cir. 2005) (noting that numerous courts, including t h e S i x th Circuit, have held that “fa irly larg e time windows in the context of child abuse prosec utions are not in conflict with constitutional notice require ments”). Bec ause we cannot say the s tate court made

an unrea sonable application of Supreme Court pr ece dent when it de termined that Stevenson’s due proce ss rig hts had not been violated, we must aff irm the district court’s denial of habea s relief with respe ct to that issue. I V. Stevenson’s second habea s claim rela tes to t he same ambig uity about the timing of the offe nse ana ly

zed above. He maintains that his attorney provided inef

fec tive assistance of counse l by prese nting an insufficient alibi defe nse and failing to asce rtain the corr ect date of the offe nse. The familiar two-prong test found in Strickland v. W ashington , 466 U.S. 668 (1984), g overns ineffe ctiveassistance -of- counsel claims. A petitioner must show both defic ient perf ormanc e by counsel and prejudice

. Id. at 687. Fur thermore , since we a

re r equire d under AEDPA to a ccor d high defe renc e to a sta t e co urt’s application of the Strickland standard, the task for a habea s petitioner “is all the

more difficult.” Harrington , 131 S. Ct

. at 788. I ndeed, a tandem application of Strickland and § 2254 require s us to be “doubly defe rential” beca use the question is not whether we believe the state - 6 -No. 12-2121

Steve nson v. Scutt court applied St r i ck l a n d incorre ctly , but whether its application was unrea sonable. Knowles v. Mirzayance , 556 U.S. 111, 123 (2009). The Michig an Court of Appea ls decide d Stevenson’s ineffe ctive-assistance claim solely based on Strickland ’s prejudice prong and found none. To establish prejudice , Stevenson must show that there is a “re asonable probability that, but for counsel’s unprofe ssional err ors, the result of the proce eding would have been differ ent.” Strickland , 466 U.S. at 694. During the trial, Stevenson’s g randmother testified that he lived in Pitt sburg h with his fathe r from J une 2003 until September 2004 and that, with t he exception of Mother’s Day 2004, he did not return to Detroit during that period. The defe nse also submitt ed Stevenson’s repor t car d from his Pitt sburg h school for the 2003- 2004 school y ear , as well as a newspa per clipping showing that he was on the school’s trac k team. As the district court noted, it is not clea r how additional school rec ords would have altere d the jury ’s conclusion. First, despite t h e ev i d ence S tevenson suppli ed that he li ved out of st ate, the jury was clea rly persua ded by T.G.’s rec ounting of the at t ac k

. S econd, the jury need not have doubted Stevenson’s g randmother ’s testimony about wher e he lived in 2003-2004, beca use the jurors could have rea sonably believed he trave led back to Detroit and committed the crime while he was residing in Pitt sburg h. Finally , the attendanc e rec ords proff ere d post-trial by Stevenson reve al multipl e fullday absenc es–both excused and unexcused–during which the attack could have occur red. I t was not

unrea sonable for the Michig an Court of Appea ls to deter mine that Stevenson suffe red no prejudice as the re sult of his trial attorney ’s incomplete e ffor ts to establish an alibi. Stevenson also criticizes his trial attorney for prese nting an alibi for the wrong date. I t is not clea r, though, that this dec i s i o n b y defe nse counsel was even a mistake at all g iven that the - 7 -No. 12-2121

Steve nson v. Scutt prosec ution wa s opera

ting under the impression that the incident occur red in January 2004. Thus, it was b o t h l o gi ca l and strateg ically rea sonable for defe nse counsel to produce evidenc e that Stevenson lived out of state during J anuar y 2004. Moreover, Stevenson can demonstrate no prejudice from this “mistake” as the confusion over the time period at trial actua lly redounde d to his benef it–allowing him to put forwa rd an a libi defense othe rwise unavailable to him. Simi larly , Stevenson’s criticism of his trial attorney ’s decision not to seek a bill of particula rs also fails to demonstrate any prejudice

. Stevenson has not identified any specific defe nse theory he would have utiliz ed had it been discovere d ear lier that the incident occur red in the winter of 2004- 2005. I n fac t, it may have even been more likely that he would h av e been convicted had the jury hear d evidenc e foc using on the 2004-2005 winter, since Stevenson lived in D etroit at that time, in t h e same building as the victim. The Michig an Court of Appea ls’ deter mination that S t ev en s o n suffe red no prejudice from his attorney ’s perf ormanc e at t ri al is not unrea sonable. Acc ording ly , Stevenson’s ineff

ective- assistance -of- counsel c laim fails. AF F IRMED.

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