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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KALVIN WASHINGTON,

Petitioner,

CASE NO. 2:09-CV-10771

v. HONORABLE GERALD E. ROSEN

BARRY DAVIS,

Respondent.

/

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 Kalvin

Washington (“Petitioner”) was convicted of third-degree criminal sexual conduct, MICH. COMP.

LAWS § 750.520d(1)(b), following a jury trial in the Oakland County Circuit Court in 2004 and was

sentenced as a third habitual offender, MICH.COMP.LAWS § 769.11, to 20 to 30 years imprisonment.

In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the propriety

of his sentence, the denial of counsel, prosecutorial misconduct, judicial misconduct, the

effectiveness of appellate counsel, and the denial of an evidentiary hearing in the state courts. For

the reasons set forth, the Court denies the petition for a writ of habeas corpus. The Court also denies

a certificate of appealability and denies leave to proceed in forma pauperis on appeal.

II. Facts and Procedural History

Petitioner’s conviction arises from the sexual assault of his girlfriend’s 16-year-old daughter

on February 9, 2003. The Court adopts the statement of facts in Petitioner’s brief on direct appeal

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in the state courts to the extent those facts are consistent with the record. Those facts are as follows:

Tirni Dowl testified that she had been sixteen years of age on the date that the crimes

charged here were alleged to have occurred. (T 4-1-04 p 72) She stated that she was

living on Bishop Street in Detroit with her mother and her three younger brothers at

that time. (T 4-1-04 pp 71-72) She said that she had met the defendant about a month

before the incident. (T 4-1-04 p 75) She said that he and her mother had been dating.

(T 4-1-04 p 75)

Tirni Dowl testified that on February 9, 2003 she was at home watching her younger

brothers while her mother was out. (T 4-1-04 pp 78-79) She stated that the defendant

called her and asked for her mother. (T 4-1-04 p 79) She said that when she told him

that her mother was not at home the defendant said that he was coming over to pick

her up. (T 4-1-04 pp 79-80) She said that when the defendant arrived she went

outside and got into his car. (T 4-1-04 pp 80-81) 

Tirni Dowl testified that she thought that they were going shopping or out to eat. (T

4-1-04 p 83) She stated that the defendant had previously told her that they would

do that sometime. (T 4-1-04 p 83) She said that while they were driving the

defendant told her that she would become a lady that night. (T 4-1-04 p 83) She said

that he parked his car in the lot of the Guest Hotel near Nine Mile Road, John R

Road and 1-75. (T 4-1-04 pp 83-84)

Tirni Dowl testified that the defendant asked her for a kiss while they sat in the car.

(T 4-1-04 p 86) He stated that when she refused he grabbed her head and put his

tongue in her mouth. (T 4-1-04 p 87) She said that next he told her to remove her

pants and underwear because he was going to take her virginity. (T 4-1-04 p 88) She

said that he raised his hand at her as if to strike her. (T 4-1-04 p 89) She said that she

took off her pants, boots and underwear because she was scared. (T 4-1-04 p 90)

Tirni Dowl testified that the defendant told her to put her seat back and to recline it.

(T 4-1-04 p 91) She stated that the defendant told her to put her legs up. (T 4-1-04

p 91) She said that when she had done so the defendant put his face between her legs

and began to lick her vagina. (T 4-1-04 p 92)

Tirni Dowl testified that the defendant told her that her mother and he had planned

to have him take her virginity. (T 4-1-04 p 93) She stated that he asked her whether

her mother had told her about the plan. (T 4-1-04 p 93) She said that the defendant

was drinking gin and using cocaine while they were together in his car. (T 4-1-04 p

95 and pp 104-105) She said that she put her clothes back on after the defendant

stopped. (T 4-1-04 p 95)

Tirni Dowl testified that the defendant then drove to a car wash near Dequindre Road

in Detroit. (T 4-1-04 pp 96-97 and p 103) She stated that he exposed his penis and

asked her to suck it but that she refused. (T 4-1-04 p 100) She said that he then told

her to remove her pants again and that he licked her vagina again. (T 4-1-04 pp

101-102) She said that before she took off her pants the defendant threatened her

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again with his raised hand. (T 4-1-04 p 101)

Tirni Dowl testified that after the defendant finished for the second time he began to

drive around. She stated that the defendant told her to tell her mother a story about

where they had been and what they had done. She said that he told her that he would

kill her family if she told anyone what he had done with her. (T 4-1-04 pp 107 109)

She said that he took her home after her mother called the defendant on his

cellphone. (T 4-1-04 pp 111-113) She said that her mother was angry with her for

leaving the house without her permission. (T 4-1-04 p 112)

Tirni Dowl testified that when she went into the house she went directly to her

bedroom which was on the ground floor. (T 4-1-04 p 115) She stated that the

defendant went upstairs to her mother's room. (T 4-1-04 pp 115-116) She said that

she heard the defendant tell her mother to shut up. (T 4-1-04 p 111) She said that she

heard her mother crying. (T 4-1-04 p 116) She said that she woke up her three

brothers and that they all left the house. (T 4-1-04 pp 116-117)

Tirni Dowl testified that she took her brothers to a relative's home that was eight or

ten blocks away from her home. (T 4-1-04 pp 117-119) She stated that her relatives

called the police when she told them what had happened. She said that officers from

the Detroit Police Department came to the relative's home and told her that she must

go to the Hazel Park Police Department because that is where the incident occurred.

(T 4-1-04 p 120) She said that her relative took her there and that she told officers

from Hazel Park what had happened to her that night. (T 4-1-04 p 122) She said that

she was visited again the following day by police officers from Detroit. (T 4-1-04 p

125)

During cross examination Tirni Dowl testified that she did not tell her mother that

she was leaving her brothers alone at the house while she went out with the

defendant. (T 4-1-04 p 138) She stated that her mother had told her not to leave the

house. (T 4-1-04 p 138) She said that she did not tell her mother what had happened

when she arrived at home because she feared what the defendant would do. (T 4-1-04

pp 152-153) She said that she did not go to her cousin's house on her own block

when she took her brothers away from her home. (T 4-1-04 p 153) She said that the

cousin who lived on her block was a Detroit police officer. (T 4-1-04 p 153) She said

that she feared that he would be hurt by the defendant if she did so. (T 4-1-04 p 153)

Ra'Leisha Dowl testified that she is the mother of Tirni Dowl. (T 4-1-04 p 164) She

stated that by February of 2003 she had known the defendant for a month and had

been dating him. (T 4-1-04 p 164) She said that the defendant had been at her home

and that he had met her four children. (T 4-1-04 pp 164-166) She said that her

children all liked the defendant. (T 4-1-04 pp 165-166)

Ms. Dowl testified that on February 9, 2003 she met with the defendant at a gas

station in Detroit at which time he gave her $100.00 because she did not have any

money. (T 4-1-04 p 169) She stated that she was with a friend at that time and that

she told the defendant that she would be going to her friend's house. (T 4-1-04 pp

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169-170) She said that the defendant asked her to call him when she got there and

to call again when she was leaving. (T 4-1-04 pp 171-172) She said that she was at

the friend's house for two or three hours. (T 4-1-04 pp 172-173)

Ms. Dowl testified that when she went home she was told by her son that Tirni was

out with the defendant. (T 4-1-04 pp 173-174) She stated that she called the

defendant and told him to bring Tirni home. (T 4-1-04 pp 174-175) She said that she

spoke to Tirni and told her that she was in trouble. (T 4-1-04 p 175) She said that she

waited for them to return in her upstairs bedroom. (T 4-1-04 p 177)

Ms. Dowl testified that the defendant stopped her on her way out of the bedroom and

told her that he wished to speak with her before she spoke to Tirni. (T 4-1-04 p 179)

She stated that he acted like a dictator. (T 4-1-04 p 179) She said that he grabbed her

arm and told her to sit down. (T 4-1-04 p 180) She said that the defendant then told

her to take off her clothing which she did. (T 4-1-04 p 181) She said that she did so

because she was afraid of the defendant. (T 4-1-04 p 182) She said that the defendant

told her that she, Tirni and he were going to have a threesome. (T 4-1-04 pp

182-183) She said that she began to cry and that the defendant held her down on the

bed. (T 4-1-04 p 182)

Ms. Dowl testified that the defendant told her that he had taken Tirni's virginity that

night. (T 4-1-04 p 184) She stated that they then engaged in a struggle and that the

defendant threatened to kill her. (T 4-1-04 p 185) She said that he also threatened to

kill her family members that lived on her block. (T 4-1-04 p 188) She said that when

she was finally able to go downstairs she discovered that all of the children were

gone. (T 4-1-04 P 195) She said that the defendant then left her house. (T 4-1-04 p

196) She said that she did not call the police due to the defendant's threats. (T 4-1-04

p 198)

Ms. Dowl testified that later that same night she called the defendant and asked him

where her children were. (T 4-1-04 p 198) She stated that the defendant told her that

she knew where they were. (T 4-1-04 p 198) She said that the defendant told her to

bring him a bag containing his belongings that was at her house. She said that she did

so. (T 4-1-04 p 199) She said that at about 3:00 a.m. on February 10, 2003 she

received a call from a relative in Texas who informed her that the children were safe

and with his daughter. (T 4-1-04 p 200)

During cross examination Ms. Dowl denied that the defendant had confronted her on

February 9, 2003 with the fact that she had been cheating on him. (T 4-1-04 p 217)

She acknowledged that in spite of all that went on that night she took the defendant's

things to him at his request. (T 4-1-04 p 224) She admitted that even after she told

her relatives what had occurred she was not allowed to see her children until the

following day. (T 4-1-04 p 227)

Off. Janeen Gielniak of the Hazel Park Police Department testified that she met with

Tirni Dowl during the early morning hours of February 10, 2003 and that she took

a statement from her regarding a sexual assault. (T 4-2-04 pp 4-6) She stated that

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Tirni was obviously upset at the time. (T 4-2-04 p 7) She said that Tirni gave her a

written statement. (T 4-2-04 p 7) She said that there is a hotel located at Nine Mile

Road and John R Road in Hazel Park called the Guesthouse Inn. (T 4-2-04 pp 9-12)

She said that it was called the Guesthouse Inn on February 9, 2003. (T 4-2-04 p 9)

During cross examination Off. Gielniak testified that the Guesthouse Inn has a fairly

small parking lot. (T 4-2-04 p 14) She stated that on Sunday evenings the traffic on

Nine Mile Road in that area would be light to medium. (T 4-2-04 p l3) She said that

the hotel lobby is connected to the parking lot on Nine Mile Road. She said that there

is a McDonald's restaurant and a strip mall close to the parking lot. (T 4-2-04 pp

14-15)

Lashon Morris testified that she is related to Tirni Dowl. (T 4-2-04 pp 16-17) She

stated that on February 9, 2003 she lived on Bedford Street in Detroit which was

eleven blocks away from Tirni's house. (T 4-2-04 p 17) She said that during the night

of February 9, 2003 Tirni came to her door with her brothers in tears and quite upset.

(T 4-2-04 P 18) She said that she took her to her bedroom where Tirni told her that

her mother's boyfriend had tried to rape her. (T 4-2-04 p 20) She said that Tirni told

her the defendant said he would kill her mother and her brothers if she did not do

what he told her. (T 4-2-04 p 23) She said that she then called the Detroit police. (T

4-2-04 p 24)

The defendant testified that he was self employed as an over the road truck driver.

(T 4-2-04 p 33) He stated that at the time of the alleged assault he lived in Phoenix,

Arizona. (T 4-2-04 p 33) He said that he had met Ra'Leisha Dowl in a topless bar and

that he began an intimate relationship with her in January of 2003. (T 4-2-04 p 34)

He said that he had met her children about two weeks after he began his relationship

with Ms Dowl. (T 4-2-04 p 34) He said that he had told her sons that he would buy

them some new video games if they did well on their report cards. (T 4-2-04 p 36)

He said that he never discussed buying anything for Tirni. (T 4-2-04 P 37)

The defendant testified that he had spent the night of February 8-9, 2003 with

Ra'Leisha Dowl at her home on Bishop Street in Detroit. (T 4-2-04 p 37) He stated

that he got up and left her home early that day. He said that at about 5:00 p.m. that

day he saw her again at a gas station. He said that he gave her $100.00 pursuant to

her request. (T 4-2-04 p 37) He said that at about 7:00 p.m. he received a telephone

call from Tirni who was looking for her mother. (T 4-2-04 p 37) He said that she told

him that she and her brothers were hungry. (T 4-2-04 p 37)

The defendant testified that he went to the house on Bishop Street, picked up Tirni

and took her to a Pizza Hut to buy some pizza. (T 4-2-04 p 39) He stated that they

went back to the house and ate the pizza with the boys. (T 4-2-04 p 39) He said that

after an hour Ra'Leisha had not returned or called. (T 4-2-04 p 40) He said that he

knew that she was supposed to be at the home of her friend, Nicole. (T 4-2-04 p 39)

He said that Tirni told him that she knew where Nicole lived and that she could

direct him to her house. (T 4-2-04 p 40) He said that they drove over there together.

(T 4-2-04 p 40)

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The first three claims were raised by counsel and the last three claims were raised by

Petitioner in a supplemental pleading.

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The defendant testified that when they arrived at Nicole's house Ra'Leisha's vehicle

was there but that she did not come out of the house. (T 4-2-04 pp 40-41) He stated

that he was told that she was not there. He said that he and Tirni then left, looked

around that neighborhood for Ra'Leisha and eventually headed for the house on

Bishop. (T 4-2-04 p 41) He said that Ra' Leisha called him on his cellphone and told

him that she was at home. He said that she also spoke to Tirni who then began to cry.

(T 4-2-04 p 42) He said that Tirni told him that she was in trouble with her mother.

(T 4-2-04 p 42)

The defendant testified that he argued with Ra'Leisha when they returned to the

house because she did not come home and feed her children with the money that he

had given to her and because she did not come to the door when he was at Nicole's

house. (T 4-2-04 pp 42-43) He stated that the argument got loud and that he told

Ra'Leisha to "shut up." (T 4-2-04 p 43) He said that the argument lasted for about

fifteen or twenty minutes. (T 4-2-04 p 43)

The defendant denied that he took Tirni to a hotel in Hazel Park. (T 4-2-04 p 44) He

denied that he assaulted her sexually there or in Detroit. (T 4-2-04 p 44)

App. Brf., pp. 4-13.

At the close of trial, the jury found Petitioner guilty of one count of third-degree criminal

sexual conduct. The trial court subsequently sentenced him as a third habitual offender to serve 20

to 30 years imprisonment.

Following his conviction and sentencing, Petitioner filed an appeal as of right with the

Michigan Court of Appeals asserting that: (1) the prosecution presented insufficient evidence to

support his conviction, (2) the trial court erred in scoring the sentencing guidelines, (3) his sentence

constituted cruel and unusual punishment, (4) the prosecution failed to timely provide a habitual

offender notice, (5) the prosecution abused its charging authority, and (5) trial counsel was

ineffective for failing to object to improperly charged offenses.1

 The Michigan Court of Appeals

denied relief on those claims and affirmed Petitioner’s convictions and sentences. People v.

Washington, No. 256061, 2005 WL 2675152 (Mich. Ct. App. Oct. 20, 2005) (unpublished).

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Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, which was

denied. People v. Washington, 474 Mich. 1094, 711 N.W.2d 357 (2005).

Petitioner subsequently filed a motion for relief from judgment with the trial court asserting

that: (1) he was denied counsel at the critical pre-trial stage of his criminal proceedings, (2) the

prosecutor engaged in misconduct by placing inadmissible, irrelevant, and prejudicial information

before the jury, (3) the trial court violated his due process rights by acquiescing control of the

proceedings to the prosecution, and (4) appellate counsel was ineffective. Petitioner also requested

an evidentiary hearing on his claims. The trial court denied the motion, finding that Petitioner failed

to establish cause or prejudice under Michigan Court Rule 6.508(D)(3) as the claims lacked merit,

and determined that an evidentiary hearing was unnecessary. People v. Washington, No. (Oakland

Co. Cir. Ct. Feb. 6, 2007). Petitioner filed an application for leave to appeal with the Michigan

Court of Appeals raising the same claims, which was denied “for lack of merit in the grounds

presented.” People v. Washington, No. 279139 (Mich. Ct. App. Feb. 20, 2008). Petitioner also filed

an application for leave to appeal with the Michigan Supreme Court, which was denied “for failure

to establish entitlement to relief under MCR 6.508(D).” People v. Washington, 482 Mich. 1029, 769

N.W.2d 208 (2008).

Petitioner thereafter instituted this federal habeas action raising the following claims as

grounds for relief:

I. The prosecution presented insufficient evidence to support his third-degree

criminal sexual conduct conviction.

II. The trial court erred in scoring Offense Variables 7 and 11 of the state

sentencing guidelines.

III. His third habitual offender sentence of 20 to 30 years imprisonment

constitutes cruel and unusual punishment.

IV. He was denied due process when he was denied counsel at the critical pretrial stage of his criminal proceedings.

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V. He was denied due process when the prosecutor engaged in misconduct by

placing inadmissible, irrelevant, and prejudicial information before the jury.

VI. He was denied due process where the trial court acquiesced control of the

proceedings to the prosecution.

VII. He was denied due process because appellate counsel was ineffective.

VIII. The state court erred in failing to grant him an evidentiary hearing on his claims.

Respondent has filed an answer to the petition contending that it should be denied because the

claims lack merit and/or are barred by procedural default.

III. Standard of Review

The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

codified 28 U.S.C. § 2241 et seq., govern this case because Petitioner filed this petition after the

AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides:

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

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habeas court to ‘grant the writ if the state court identifies the correct governing legal principle from

[the Supreme] Court but unreasonably applies that principle to the facts of petitioner’s case.”

Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting 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. “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, _ U.S. _, 130 S. Ct. 1855, 1862 (2010)

(quoting Lindh, 521 U.S. at 333, n. 7; Woodford v. Viscotti, 537 U.S. 19, 24 (2002) (per curiam)).

The Supreme Court recently held that “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, _ U.S. _, 131 S. Ct. 770, 786 (2011) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The Supreme Court 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 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.

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

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

Knowles v. Mirzayance, _ U.S. _, 129 S. Ct. 1411, 1419 (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 before its decision can be deemed to have been ‘adjudicated on the merits.’” Harrington,

131 S. Ct. at 785. 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. While the requirements of “clearly established law” are to be determined

solely by Supreme Court precedent, the decisions of lower federal courts may be useful in assessing

the reasonableness of the state court’s resolution of an issue. See 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).

Lastly, a state court’s factual determinations are presumed correct on federal habeas review.

See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption only with clear and

convincing evidence. See Warren v. Smith, 161 F.3d 358, 360-61 (6th Cir. 1998).

IV. Analysis

A. Insufficient Evidence Claim

Petitioner first asserts that he is entitled to habeas relief because the prosecution presented

insufficient evidence to support his third-degree criminal sexual conduct conviction. In particular,

Petitioner claims that the victim’s testimony was not credible and the prosecution failed to provide

any corroborating evidence at trial. Respondent contends that this claim lacks merit.

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In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court established that a federal

court’s review of a sufficiency of the evidence claim 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.” Id. at 319. The court must view

this standard through the framework of 28 U.S.C. § 2254(d). See 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 factfinder at trial and the state court on appellate review – as long as those

determinations are reasonable. See Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009), cert. den.

_ U.S. _, 130 S. Ct. 1081 (2010). Furthermore, the Jackson standard must be applied “with explicit

reference to the substantive elements of the criminal offense as defined by state law.” Jackson, 443

U.S. at 324 n. 16. “The mere existence of sufficient evidence to convict therefore defeats a

petitioner’s claim.” Matthews v. Abramajtys, 319 F.3d 780, 788-89 (6th Cir. 2003) (citation

omitted).

Under Michigan law, the elements of third-degree criminal sexual conduct as charged in

Petitioner’s case are: “(1) sexual penetration of the complainant, (2) achieved by force or

coercion.” People v. Vaughn, 186 Mich. App. 376, 380, 465 N.W.2d 365 (1990) (citing MICH.

COMP. LAWS § 750.520d(1)(b); People v. Hurst, 132 Mich. App. 148, 346 N.W.2d 601 (1984)).

For the purposes of the statute, the requisite “force” is that which “allow[s] the penetration when

absent that force the penetration would not have occurred.” People v. Carlson, 466 Mich. 130, 140,

644 N.W.2d 704 (2002). This “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 of sexual penetration without regard to the victim’s wishes.” Id. Force or

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

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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). Circumstantial evidence and

reasonable inferences arising from the evidence may constitute satisfactory proof of the elements

of a crime. See People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993).

Applying these standards, the Michigan Court of Appeals determined that the prosecution

presented sufficient evidence to support Petitioner’s conviction based upon the victim’s testimony.

Washington, 2005 WL 2675152 at *1. This decision is neither contrary to Jackson nor an

unreasonable application of federal law or the facts. The victim’s testimony established the

elements of the crime. The testimony of a victim alone can be constitutionally sufficient to sustain

a conviction. See Tucker v. Palmer, 541 F.3d 652, 658 (6th Cir. 2008) (citing cases). Given the

victim’s trial testimony, a reasonable jury could have concluded that Petitioner committed the

crime, that he acted with the requisite intent, and that the sexual encounter was the product of force

or coercion and not consensual.

Petitioner essentially challenges the credibility and weight to be accorded the evidence

presented at trial. It is well-settled, however, that “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.” Jackson, 443 U.S. at 326. It is the job of the

fact-finder, not a federal habeas court, to resolve credibility conflicts. See Martin, 280 F.3d at 618;

Walker v. Engle, 703 F.2d 959, 969-70 (6th Cir. 1983). A federal court on habeas review cannot

re-weigh the evidence or re-assess witness credibility. The state court’s decision that a rational trier

of fact could find the essential elements of third-degree criminal sexual conduct beyond a

reasonable doubt was reasonable. Habeas relief is not warranted on this claim.

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B. Sentencing Guidelines Claim

Petitioner next asserts that he is entitled to habeas relief because the trial court erred in

scoring Offense Variable 7 (aggravated physical abuse) and Offense Variable 11 (criminal sexual

penetrations) under the state sentencing guidelines. Respondent contends that this claim is not

cognizable on habeas review and lacks merit.

As an initial matter, the Court notes that Petitioner's sentences are within the statutory

maximums. See MICH.COMP.LAWS §§ 750.520d; 769.11. A sentence imposed within the statutory

limits is generally not subject to federal habeas review. See Townsend v. Burke, 334 U.S. 736, 741

(1948). Claims which arise out of a state trial court’s sentencing decision are not normally

cognizable upon habeas review, unless the petitioner can show that the sentence imposed exceeded

the statutory limits or is wholly unauthorized by law. See Lucey v. Lavigne, 185 F. Supp. 2d 741,

745 (E.D. Mich. 2001). Petitioner makes no such allegation.

Petitioner’s claim that the trial court erred in scoring two offense variables under the state

sentencing guidelines is not cognizable on federal habeas review because it is basically a state law

claim. 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.”); Cheatham v. Hosey, 12 F.3d 211, 1993 WL 478854, *2 (6th Cir. Nov.19, 1993) (ruling that

departure from state sentencing guidelines is a state law issue which is not cognizable on federal

habeas review); McPhail v. Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006); Robinson v.

Stegall, 157 F. Supp. 2d 802, 823 (E.D. Mich. 2001). Any error in scoring the offense variables

and determining the guideline range does not merit habeas relief. State courts are the final arbiters

of state law and the federal courts will not intervene in such matters. See Lewis v. Jeffers, 497 U.S.

764, 780 (1990); Oviedo v. Jago, 809 F.2d 326, 328 (6th Cir. 1987); see also Bradshaw v. Richey,

546 U.S. 74, 76 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Habeas relief does

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not lie for perceived errors of state law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).

Moreover, even if this claim were cognizable, Petitioner is not entitled to relief. The

Michigan Court of Appeals determined that Offense Variables 7 and 11 were properly scored based

upon the victim’s testimony and state law. Washington, 2005 WL 2675152 at *1-2. This decision

is reasonable and is neither contrary to Supreme Court precedent nor an unreasonable application

of federal law or the facts.

Additionally, Petitioner is not entitled to relief on any claim that the trial court violated his

Sixth Amendment rights by relying upon facts neither admitted by him nor proven beyond a

reasonable doubt. The Michigan Court of Appeals denied relief on this claim finding that Blakely

v. Washington, 542 U.S. 296 (2004), and its progeny do not apply to Michigan’s indeterminate

sentencing scheme. Washington, 2005 WL 2675152 at *2. This decision is neither contrary to

Supreme Court precedent nor an unreasonable application thereof. Petitioner’s Sixth Amendment

challenge to his sentence has been foreclosed by the Sixth Circuit’s decision in Chontos v.

Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009) (“Harris v. United States tells us that Apprendi’s

rule does not apply to judicial factfinding that increases a minimum sentence so long as the

sentence does not exceed the applicable statutory maximum.”); see also Montes v. Trombley, 599

F.3d 490, 495 (6th Cir. 2010) (the Blakely-Apprendi rule requiring any fact that increases the

penalty for a crime beyond the prescribed statutory maximum to be submitted to a jury and proven

beyond a reasonable doubt does not apply to laws that set the maximum sentence by statute but

permit a judge to determine the minimum sentence through judicial factfinding, and does not

preclude a judge from utilizing a preponderance-of-the-evidence standard when finding facts

related to sentencing). This Court is bound by the Sixth Circuit’s decisions. Because Petitioner’s

sentence is within the statutory maximum, which was not enhanced by judicial factfinding, no

Sixth Amendment violation occurred. Petitioner has failed to state a claim upon which relief may

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be granted as to this issue. Habeas relief is not warranted.

C. Cruel and Unusual Punishment Claim

Petitioner relatedly asserts that he is entitled to habeas relief because his third habitual

offender sentence of 20 to 30 years imprisonment constitutes cruel and unusual punishment.

Respondent contends that this claim lacks merit.

As an initial matter, to the extent that Petitioner asserts that his sentence is disproportionate

under Michigan law or violates the Michigan Constitution, he fails to state a claim for federal

habeas relief. See Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000) (citing Pulley v. Harris, 465

U.S. 37, 41 (1984)). Moreover, there is no federal constitutional right to individualized sentencing.

See United States v. Thomas, 49 F.3d 253, 261 (6th Cir. 1995).

Petitioner is also not entitled to relief on his claim that his sentence violates the Eighth

Amendment. The Eighth Amendment to the United States Constitution protects an individual from

cruel and unusual punishment. However, it does not require strict proportionality between a crime

and its punishment. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991); United States v. Marks,

209 F.3d 577, 583 (6th Cir. 2000). “Consequently, only an extreme disparity between crime and

sentence offends the Eighth Amendment.” Marks, 209 F.3d at 583. A sentence within the statutory

maximum does not normally constitute cruel and unusual punishment. See Austin, 213 F.3d at 302

(citing United States v. Organek, 65 F.3d 60, 62 (6th Cir.1995)). “Federal courts will not engage

in a proportionality analysis except in cases where the penalty imposed is death or life in prison

without possibility of parole.” Thomas, 49 F.3d at 261.

The Michigan Court of Appeals denied relief on this claim finding that Petitioner’s sentence

was within the guideline range, was presumptively proportionate, and was not cruel or unusual

punishment. Washington, 2005 WL 2675152, *2. This decision is neither contrary to Supreme

Court precedent nor an unreasonable application thereof. Petitioner was sentenced as a third

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habitual offender to 20 to 30 years imprisonment on his third-degree criminal sexual conduct

conviction. As noted, his sentence is within the statutory maximum, as well as the state sentencing

guidelines. The trial court acted within its discretion in imposing Petitioner’s sentence and there

is no extreme disparity between his crime and sentence so as to offend the Eighth Amendment.

Habeas relief is not warranted on this claim.

D. Procedural Default of Certain Claims

Respondent contends that Petitioner’s claims concerning the denial of counsel/ineffective

assistance of trial counsel, prosecutorial misconduct, and judicial acquiescence are barred by

procedural default because Petitioner first raised them on post-conviction collateral review and the

state courts denied relief pursuant to Michigan Court Rule 6.508(D).

Federal habeas relief is precluded on claims that a petitioner has not presented to the state

courts in accordance with the state’s procedural rules. See Wainwright v. Sykes, 433 U.S. 72, 85-87

(1977). The doctrine of procedural default is applicable when a petitioner fails to comply with a

state procedural rule, the rule is actually relied upon by the state courts, and the procedural rule is

“adequate and independent.” White v. Mitchell, 431 F.3d 517, 524 (6th Cir. 2006); see also

Howard v. Bouchard, 405 F.3d 459, 477 (6th Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539

(6th Cir. 2001). The last explained state court judgment should be used to make this determination.

 See Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or

unexplained denial, it is presumed that the last reviewing court relied upon the last reasoned

opinion. Id.

Petitioner first presented these claims to the state courts in his motion for relief from

judgment. The Michigan Supreme Court denied relief pursuant to Michigan Court Rule 6.508(D),

which provides, in part, that a court may not grant relief to a defendant if the motion for relief from

judgment alleges grounds for relief which could have been raised on direct appeal, absent a

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showing of good cause for the failure to raise such grounds previously and actual prejudice

resulting therefrom. See MICH.CT.R. 6.508(D)(3). The Sixth Circuit has held that the form order

used by the Michigan Supreme Court to deny leave to appeal in this case is unexplained because

its citation to Michigan Court Rule 6.508(D) is ambiguous as to whether it refers to a procedural

default or a rejection on the merits. See Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010)

(en banc). Consequently, under Guilmette, the Court must “look through” the unexplained order

of the Michigan Supreme Court to the state trial court’s decision to determine the basis for the

denial of state post-conviction relief.

In this case, the state trial court clearly denied relief on procedural grounds. The trial court

cited Michigan Court Rule 6.508(D)(3) and concluded that Petitioner had failed to demonstrate

good cause and actual prejudice because his underlying claims lacked merit and no miscarriage of

justice had occurred. Accordingly, Petitioner’s denial of counsel/ineffective assistance of trial

counsel, prosecutorial misconduct, and judicial acquiescence claims are procedurally defaulted.

A state prisoner who fails to comply with a state’s procedural rules waives the right to

federal habeas review absent a showing of cause for noncompliance and actual prejudice resulting

from the alleged constitutional violation, or a showing of a fundamental miscarriage of justice. See

Coleman v. Thompson, 501 U.S. 722, 750-51 (1991); Nields v. Bradshaw, 482 F.3d 442 (6th Cir.

2007); Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996).

Petitioner asserts ineffective assistance of appellate counsel as cause to excuse his default.

In order to establish ineffective assistance of counsel, the petitioner must show “that counsel’s

performance was deficient ... [and] that the deficient performance prejudiced the defense.”

Strickland v. Washington, 466 U.S. 668, 687 (1984); O'Hara v. Wigginton, 24 F.3d 823, 828 (6th

Cir. 1994). In determining whether counsel’s performance was deficient,

[t]he court must ... determine whether, in light of all the circumstances, the

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identified acts or omissions were outside the wide range of professionally competent

assistance . . . . At the same time, the court should recognize that counsel is strongly

presumed to have rendered adequate assistance and made all significant decisions

in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690. Judicial scrutiny of counsel’s performance is thus “highly deferential.”

Id. at 689. The defense is prejudiced only if “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

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). The Supreme Court has explained:

For judges to second-guess reasonable professional judgments and impose on

appointed counsel a duty to raise every "colorable" claim suggested by a client

would disserve the ... goal of vigorous and effective advocacy .... Nothing in the

Constitution or our interpretation of that document requires such a standard.

Id. at 754.

Strategic and tactical choices regarding which issues to pursue on appeal are “properly left

to the sound professional judgment of counsel.” United States v. Perry, 908 F.2d 56, 59 (6th Cir.

1990). In fact, “the hallmark of effective appellate advocacy” is the “process of ‘winnowing out

weaker arguments on appeal and focusing on’ those more likely to prevail.” See Smith v. Murray,

477 U.S. 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when ignored

issues are clearly stronger than those presented will the presumption of effective assistance of

appellate counsel be overcome.” Monzo v. Edwards, 281 F.3d 568, 579 (6th Cir. 2002). Appellate

counsel may deliver deficient performance and prejudice a defendant by omitting a “dead-bang

winner,” defined as an issue which was obvious from the trial record and would have resulted in

reversal on appeal. See Meade v. Lavigne, 265 F. Supp. 2d 849, 870 (E.D. Mich. 2003).

Petitioner has failed to show that by omitting the claims presented in his motion for relief

from judgment, appellate counsel’s performance fell outside the wide range of professionally

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competent assistance. Appellate counsel presented legitimate issues on direct appeal, including

claims challenging the sufficiency of the evidence and the validity of Petitioner’s sentence. Such

issues, although ultimately unsuccessful, were substantial. The claims presented in the motion for

relief from judgment are not obviously stronger than the ones raised by appellate counsel on direct

appeal. To be sure, the trial court, in considering the prejudice component of the cause and

prejudice test, found that the claims lacked merit. Petitioner has thus failed to demonstrate that

appellate counsel was ineffective so as to establish cause to excuse his procedural default.

The Court need not address the issue of prejudice when a petitioner fails to establish cause

to excuse a procedural default. See Smith, 477 U.S. at 533; Long v. McKeen, 722 F.2d 286, 289

(6th Cir. 1983). Nonetheless, the Court notes that it would find that the defaulted claims lack merit

for the reasons stated by the trial court in denying Petitioner’s motion for relief from judgment.

Lastly, Petitioner has not demonstrated that a fundamental miscarriage of justice has

occurred. The miscarriage of justice exception requires a showing that a constitutional violation

probably resulted in the conviction of one who is actually innocent. See Murray v. Carrier, 477

U.S. 478, 479-80 (1986). To be credible, such a claim of actual innocence requires a petitioner to

support the allegations of constitutional error with new reliable evidence that was not presented at

trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Actual innocence means factual innocence, not

mere legal insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner has made

no such showing. These claims are thus barred by procedural default, lack merit, and do not

warrant habeas relief.

E. Ineffective Assistance of Appellate Counsel Claim

Petitioner also asserts an independent claim that he is entitled to habeas relief because

appellate counsel was ineffective for failing to raise the foregoing defaulted issues on direct appeal

of his convictions. Petitioner is not entitled to habeas relief on any independent claim challenging

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appellate counsel’s conduct. As explained supra, he has failed to establish that appellate counsel

was ineffective under the Strickland standard – and the defaulted claims lack merit. Habeas relief

is therefore not warranted on this claim.

F. Evidentiary Hearing Claim

Lastly, Petitioner asserts that he is entitled to habeas relief because the state courts failed

to grant him an evidentiary hearing on his claims and/or he is entitled to an evidentiary hearing in

federal court. To the extent that Petitioner claims that the state courts violated state law in denying

him an evidentiary hearing, he is not entitled to relief. See Hayes v. Prelesnik, 193 F. App’x 577,

584 (6th Cir. 2006) (citing Baze v. Parker, 371 F.3d 310, 322-23 (6th Cir. 2004)). A state court’s

alleged failure to properly apply state law or its own procedural rules, even if well-established, is

not cognizable on federal habeas review. This Court’s power to grant a writ of habeas corpus only

extends to errors in the application of federal law. See, e.g., Estelle, 502 U.S. at 67-68.

Moreover, there is no clearly-established Supreme Court law which recognizes a

constitutional right to an evidentiary hearing on state post-conviction review to develop issues,

including claims of ineffective assistance of counsel. See Hayes, 193 F. App’x at 584; Hall v.

Berghuis, No. 2:07-CV-12163, 2009 WL 2244793, *9 (E.D. Mich. July 27, 2009) (citing Hayes and

denying habeas relief on similar claim); accord Poindexter v. Jones, No. 1:05-cv-833, 2008 WL

5422855, *4 (W.D. Mich. Dec. 30, 2008). Lastly, given the Court’s determination that the

foregoing claims lack merit, Petitioner has not shown the need for an evidentiary hearing. Habeas

relief is not warranted.

V. Conclusion

For the reasons stated, the Court concludes that Petitioner is not entitled to federal habeas

relief on the claims contained in his petition and the petition must therefore be denied.

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.

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See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only

if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a federal court rejects a habeas claim on the merits, the substantial showing

threshold is met if the petitioner demonstrates that reasonable jurists would find the court’s

assessment of the constitutional claim debatable or wrong. See 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). In applying this standard, a court may not conduct a full merits

review, but must limit its examination to a threshold inquiry into the underlying merit of the claims.

Id. at 336-37. When a court denies a habeas claim on procedural grounds without addressing the

merits, a certificate of appealability should issue if it is shown that jurists of reason would find it

debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that

jurists of reason would find it debatable whether the district court was correct in its procedural

ruling. Slack, 529 U.S. at 484-85.

Having conducted the requisite review, the Court concludes that Petitioner has failed to

make a substantial showing of the denial of a constitutional right as to his habeas claims and that

reasonable jurists would not find the Court’s procedural ruling debatable. A certificate of

appealability is not warranted. The Court further concludes that Petitioner should not be granted

leave to proceed in forma pauperis on appeal as any appeal would be frivolous and cannot be taken

in good faith. See Fed. R. App. P. 24(a).

Accordingly;

IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and

DISMISSED WITH PREJUDICE.

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IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed in

forma pauperis on appeal are DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: June 3, 2011

I hereby certify that a copy of the foregoing document was served upon counsel of record on June

3, 2011, by electronic mail and upon Kalvin Washington, #493833, Chippewa Correctional Facility,

4269 W. M-80, Kincheloe, MI 49784 by ordinary mail.

s/Ruth A. Gunther 

Case Manager

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