UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL D. VANCE,

Petitioner,

CASE NO. 09-CV-11368

v. HON. GEORGE CARAM STEEH

PAUL KLEE,

Respondent.

_______________________/

OPINION AND ORDER ON REMAND DENYING THE

PETITION FOR WRIT OF HABEAS CORPUS AND

DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

OR LEAVE TO APPEAL IN FORMA PAUPERIS 

Michael D. Vance, (“Petitioner”), confined at the Parnall Correctional

Facility in Jackson, Michigan, seeks the issuance of a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner

challenges his conviction for seven counts of first-degree criminal sexual

conduct, M.C.L.A. 750.520b(1)(a); and three counts of second-degree

criminal sexual conduct, M.C.L.A. 750.520c(1)(a). For the reasons stated

below, the petition for writ of habeas corpus is DENIED WITH

PREJUDICE.

-1-
I. Background

Petitioner was charged with numerous counts of criminal sexual

conduct in Oakland County Circuit Court Case # 03-193604-FC and was

separately charged with one count of second-degree criminal sexual

conduct in Oakland County Circuit Court Case # 03-192752-FH. The judge

ordered these two cases consolidated for a single trial. 

B.K. 1

 testified that petitioner was her mother’s boyfriend and lived

with her and her mother in an apartment. B.K. was born on November 27,

1991. B.K. testified that during a two week period when she was nine

years old, petitioner woke her up in the middle of the night, took her to the

bathroom, and forced her to perform fellatio on him while petitioner sat on

the toilet and the victim sat on the bathroom floor. (Tr. 6/8/2004, pp. 115-

26). After the two-week period, B.K. wrote a note to her mother to inform

her about the sexual assaults. B.K.’s mother requested that B.K. not tell

her grandmother about the sexual assaults. (Id., at pp. 128-30). Three

years later, when B.K. was in middle school, she informed a friend, a

school counselor, and personnel at Care House about the sexual assaults.

(Id., at pp. 131-32).

1 Because both of the victims were minors at the time of the offenses, this Court will refer to them

solely by their initials in order to preserve their privacy. 

-2-
Cheryl Lynn Andreen had lived in another unit in the same apartment

building that B.K., her mother, and petitioner had resided in. Andreen

testified that one day in March of 2001, Andreen’s roommate pounded on

the door while she was taking a shower and asked her to go upstairs and

speak with B.K.’s mother. Andreen went upstairs and noticed that B.K.’s

mother was crying and B.K. appeared upset. B.K.’s mother handed

Andreen a notebook which contained a note in a child’s handwriting, stating

“Mommy, Michael is making me put his penis in my mouth. Make him

stop.” When B.K.’s mother asked Andreen what she should do, Andreen

suggested that she should call the police, but B.K.’s mother indicated that

she would like to speak with petitioner first. Andreen suggested that B.K.’s

mother at least speak with a friend of hers who was a lieutenant with the

Lake Orion Police. Andreen subsequently called this lieutenant and asked

for his advice. (Id., pp. 169-75). 

K.V. testified that she was a second-grader at the time of petitioner’s

trial. Petitioner was one of her mother’s prior boyfriends. When K.V. was

six years old, petitioner made her play “with his private”, i.e. with what

petitioner used to “go to the bathroom.” K.V. testified that petitioner tried to

make her use her mouth to stimulate him, but she did it with her hands. 

-3-
K.V. testified that petitioner did this in an area with trees all around and a

sign in the middle. K.V. subsequently told her mother about the assault

after petitioner had moved out of their residence. (Tr. 6/9/2004, pp. 10-20). 

K.V.’s mother confirmed that K.V. had informed her that petitioner

sexually assaulted her. (Id., pp. 30-35). On cross-examination, K.V.’s

mother admitted that she was manic-depressive, that petitioner had broken

up with her, that petitioner had obtained a personal protection order against

her as a result of her trying to make contact with him, and that it was her

ex-husband who reported the incident to the police on May 14, 2003, after

she had told him what had happened. (Id., pp. 39-41).

K.V.’s father testified that he wrote a statement for the police on May

6, 2003. In this statement, K.V.’s father indicated that K.V. informed him

that petitioner had taken her to a park and asked her to touch him on his

private parts with her mouth. K.V. told him that she did not want to do that

and touched petitioner’s genitals with her hands instead. K.V.’s father

indicated that his daughter subsequently pointed out to him where the

assault had taken place. (Id., pp. 49-50, 54-55). 

Petitioner’s mother, Imogene Ruth Cochrane, testified for the

defense. One night, B.K.’s mother pounded on her door and asked her to

-4-
“go get Michael with me.” B.K.’s mother informed Cochrane of B.K.’s

allegations en route to pick up petitioner from his workplace. When

confronted with the allegations, petitioner told Cochrane and B.K.’s mother

that “I’ve never heard anything like this before, I’ve never done anything

like this before.” (Id., pp. 65-69). A few days later, B.K.’s mother asked

Cochrane to look at a letter that B.K. had allegedly written. Cochrane

testified that the handwriting did not look like it was done by a child and

was not worded as a child would have worded it. Cochrane told petitioner

and B.K.’s mother after reviewing the letter that she did not know what to

think of this because petitioner had a good military career. B.K.’s mother

called B.K. and asked her if this was her letter or not. The trial court then

sustained the prosecutor’s objection on hearsay grounds and would not

permit Cochrane to testify what B.K. had stated in her answer to her

questions. (Id., pp. 70-80). 

Petitioner testified in his own behalf and denied sexually assaulting

either victim. (Tr. 6/10/2004, pp. 31-32, 38, 45, 50-56, 60-61, 77-81).

Petitioner’s convictions were affirmed on appeal. People v. Vance,

Nos. 260292; 261914 (Mich.Ct.App. May 26, 2005); lv. den. 474 Mich.

1024, 708 N.W.2d 402 (2006). 

-5-
Petitioner then filed a post-conviction motion for relief from judgment

pursuant to M.C.R. 6.500, et. Seq., which the trial court denied. People v.

Vance, Nos. 03-192752-FH/03-193604-FC (Oakland County Circuit Court,

March 8, 2007). The Michigan appellate courts denied petitioner leave to

appeal. People v. Vance, No. 282797 (Mich.Ct.App. April 25, 2008); lv.

den. 482 Mich. 1185, 758 N.W.2d 562 (2008).

In 2009, petitioner filed a petition for writ of habeas corpus. This

Court granted petitioner a conditional writ of habeas corpus, finding that

petitioner was denied his right to the effective assistance of appellate

counsel with respect to his appeal of right with the Michigan Court of

Appeals due to appellate counsel’s failure to file an appeal of right in Case

# 03-193604-FC and the trial court’s failure to properly advise petitioner of

his right to appeal in Case # 03-192752-FH. This Court ordered that

petitioner’s appeal of right be reinstated in both cases within sixty days of

the Court’s order and that the Michigan Court of Appeals undertake to

appoint appellate counsel to represent petitioner. See Vance v. Scutt, No.

2:09-CV-11368; 2012 WL 666520 (E.D. Mich. Feb. 29, 2012). 

The Sixth Circuit affirmed the conditional grant of a writ of habeas

corpus with respect to Case No. 03-193604-FC and ordered that

-6-
petitioner’s state appellate court rights be restored with respect to that

case. The Sixth Circuit, however, reversed the grant of the writ in Case #

03-192752-FH and remanded for further proceedings consistent with the

opinion. Vance v. Scutt, 573 F. App'x. 715 (6th Cir. 2014).

On remand, this Court held the petition in abeyance pending the

completion of petitioner’s appeal of right in Case No. 03-193604-FC. Vance

v. Scutt, No. 2:09-CV-11368, 2014 WL 4192743 (E.D. Mich. Aug. 22,

2014).

Petitioner’s conviction in Case No. 03-193604-FC was affirmed

following his new appeal of right, although the case was remanded for resentencing because of an error in the scoring of the sentencing guidelines.

People v. Vance, No. 323408, 2016 WL 3700301 (Mich. Ct. App. Jan. 26,

2016), lv. den. 499 Mich. 986, 882 N.W.2d 159 (2016). Petitioner was resentenced on September 1, 2016.

On October 13, 2016, this Court reopened the case and amended the

caption but denied petitioner’s motion for the appointment of counsel. The

Court granted petitioner an extension of time to file an amended petition. 

On January 30, 2017, this Court granted petitioner’s motion to amend his

habeas petition and ordered that the amended petition be served upon

-7-
respondent. Respondent filed an answer on July 5, 2017 and petitioner

filed a reply brief on August 28, 2017. 

In his amended habeas petition, petitioner seeks relief on twelve

separate grounds: (1) the trial judge erred in consolidating the two cases

for trial, (2) the similar acts evidence was more prejudicial than probative

and this denied petitioner his constitutional right to a fair trial, (3) petitioner

was denied his constitutional right to present a defense because the trial

court prevented him from impeaching the testimony of one of the

complainants, (4) petitioner was denied a fair trial by introduction of two

prior consistent statements when there was no claim of recent fabrication,

(5) cumulative error, (6) the trial court erred in scoring OV-8, OV-9 and OV11 of the Michigan Sentencing Guidelines, (7) petitioner was denied a fair

trial because of prosecutorial misconduct, (8) The trial court erred in

scoring 15 points for OV-10 of the Michigan Sentencing Guidelines, (9) the

trial court violated the U.S. and Michigan Constitutions in sentencing

petitioner to a prison term of 15 to 50 years on the CSC I convictions.

(10) petitioner was denied his due process and right to a fair trial by the

prosecutor’s misconduct in improperly impugning petitioner’s character and

veracity and improperly vouching for the credibility of the complainants’

-8-
during closing argument and defense counsel was ineffective for failing to

object, (11) petitioner was denied his constitutional right to due process of

law and a fair trial when the court failed to state its reasons for denying trial

counsel’s motion for a directed verdict, and (12) the trial court committed

reversible error when it assessed attorney fees in an amended order.

-9-
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

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

-10-
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

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)(citing Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). Therefore, in order to obtain

habeas relief in federal court, a state prisoner is required to show that the

state court’s rejection of his or her claim “was so lacking in justification that

there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.” Harrington, 562 U.S.

at 103. A habeas petitioner should be denied relief as long as it is within

the “realm of possibility” that fairminded jurists could find the state court

decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152

(2016).2

2 Petitioner filed a petition with this Court, raising twelve claims. The Sixth Circuit has observed:

“When a party comes to us with nine grounds for reversing the district court, that usually means there are

none.” Fifth Third Mortgage v. Chicago Title Ins., 692 F.3d 507, 509 (6th Cir. 2012).

-11-
III. Discussion

A. Claims # 1 and # 2. The misjoinder and “other acts

evidence” claims.

In his first claim, petitioner contends that he was denied a fair trial

when the trial court improperly consolidated petitioner’s two separate

criminal sexual conduct cases that involved two different victims into one

trial. In his related second claim, petitioner argues that the trial judge erred

in ruling that evidence of petitioner’s sexual assaults against each of the

victims would be admissible under M.R.E. 404(b) at a trial involving the

other victim, had each of the victims been tried separately. 

The trial judge prior to trial granted the prosecution’s motion to

consolidate the two cases into one trial, on the ground that the cases

involved two minor children that took place during “a somewhat similar time

period.” The judge further noted that some of the police officers who would

be testifying had been involved in both cases. The judge further granted

the prosecution’s motion to introduce evidence of the separate sexual

assault charges regarding each victim as “prior bad acts” evidence

pursuant to M.R.E. 404(b), namely, to show that petitioner had a plan or

scheme of meeting women who have small children, moving in with them,

and molesting their children. (Tr. 1/7/1004, pp. 11-13). 

-12-
Improper joinder does not, by itself, violate the federal constitution.

United States v. Lane, 474 U.S. 438, 446, n. 8 (1986). The Supreme Court

in Lane suggested in passing that misjoinder could rise “ to the level of a

constitutional violation only if it results in prejudice so great as to deny a

defendant his Fifth Amendment right to a fair trial.” Id. The Sixth Circuit

noted that this language in Lane concerning a court’s failure to sever

criminal charges is simply dicta and thus not clearly established federal

law. See Mayfield v. Morrow, 528 F. App’x. 538, 541-42 (6th Cir. 2013). 

Because “‘clearly established Federal law’ for purposes of § 2254(d)(1)

refers to ‘the holdings, as opposed to the dicta, of [the Supreme] Court’s

decisions[.],’” Id. (quoting Williams v. Taylor, 529 U.S. at 412), the Sixth

Circuit concluded that the habeas petitioner could not rely on Lane to

obtain habeas relief on his claim that he had been deprived of his right to a

fair trial when the judge denied his motion to sever different rape charges.

Id. The Ninth Circuit has likewise held that a habeas petitioner could not

rely on the Supreme Court’s dicta in Lane to obtain habeas relief on an

improper misjoinder claim, particularly where that dicta was merely

mentioned as a comment in a footnote of the opinion. See Collins v.

Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Another judge in this district

-13-
indicated that he had “found no Supreme Court cases holding that a

defendant in a criminal case has a constitutional right to a separate trial on

each of the charges against him.” Rodriguez v. Jones, 625 F. Supp. 2d

552, 560-61 (E.D. Mich. 2009). 

Given the lack of holdings by the Supreme Court on the issue of

whether a state court violates a habeas petitioner’s due process rights by

joining together unrelated criminal charges in a single trial, the Michigan

Court of Appeals’ rejection of petitioner’s improper joinder claim was not an

unreasonable application of clearly established federal law. See Wright v.

Van Patten, 552 U.S. 120, 126 (2008); Carey v. Musladin, 549 U.S. 70, 77

( 2006); See also Comaduran v. Clark, 452 F. App’x. 728, 728-29 (9th Cir.

2011).

Moreover, such claims have typically been rejected by the Sixth

Circuit even on direct review of federal criminal convictions. The Sixth

Circuit held that to establish prejudice from joinder, a defendant must point

to specific evidence that the joinder was prejudicial and “an unproven

assertion is not compelling evidence of actual prejudice.” U.S. v. Saadey,

393 F. 3d 669, 679 (6th Cir. 2005). A jury is presumed capable of

considering each criminal count separately and any prejudice arising from

-14-
trial of joined offenses may be cured by limiting instructions. U.S. v. Cope,

312 F. 3d 757, 781 (6th Cir. 2002). “Error based on misjoinder is almost

always harmless where...the trial court issues a careful limiting instruction

to the jury on the issue of possible prejudice resulting from the joinder.”

U.S. v. Cody, 498 F. 3d 582, 587 (6th Cir. 2007).

In the present case, it was not fundamentally unfair to join the

different charges against petitioner in a single trial because “ joinder was

an efficient use of resources.” Rodriguez v. Jones, 625 F. Supp. 2d at 561;

See also Conte v. Cardwell, 475 F. 2d 698, 700 (6th Cir. 1973)

(participation by state habeas corpus petitioner in successive prison riots in

the same institution separated in time by less than two months were

sufficient circumstances to permit joinder of offenses in an indictment and

in a trial without violation of due process.). 

Petitioner was also not prejudiced by the joinder of the charges,

because the Michigan Court of Appeals indicated that much of the same

evidence involving the two separate cases would have been admissible

against petitioner pursuant to M.R.E. 404(b) at separate trials. People v.

Vance, 2016 WL 370030, at * 2. Because much of the same evidence

would have been admitted against petitioner at separate trials, petitioner

-15-
was not prejudiced by the joinder of the charges in this case. See LaMar v.

Houk, 798 F.3d 405, 428 (6th Cir. 2015), U.S. v. Jacobs, 244 F. 3d 503,

507 (6th Cir. 2001). Petitioner is not entitled to habeas relief because he

failed to identify which evidence that was admitted at his joint trial would

have been inadmissible if he had been tried separately with respect to each

set of charges. LaMar, 798 F. 3d at 428. Moreover, the trial court gave the

jurors a cautionary instruction, which advised them that the fact that

petitioner was charged with more than one offense was not evidence of his

guilt and that they could not use this evidence to determine that he was a

bad person or that he was likely to commit these crimes, but only for the

limited purpose of deciding whether or not petitioner acted purposefully or

that petitioner had used a scheme, plan, or system that he had used before

or since. (Tr. 6/10/2004, p. 119). The trial court’s cautionary instruction

adequately cured any possible prejudice from the joinder of the separate

charges at one trial. Jacobs, 244 F. 3d at 507. Petitioner is not entitled to

relief on his first claim.

In his second claim, petitioner argues that the trial court erred in

admitting into evidence prior bad acts evidence against him in violation of

M.R.E. 404(b).

-16-
It is “not the province of a federal habeas court to reexamine statecourt determinations on state-court questions.” Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). A federal court is limited in federal habeas review to

deciding whether a state court conviction violates the Constitution, laws, or

treaties of the United States. Id. Errors in the application of state law,

especially rulings regarding the admissibility of evidence, are usually not

questioned by a federal habeas court. Seymour v. Walker, 224 F. 3d 542,

552 (6th Cir. 2000). 

Petitioner’s claim that the state court violated M.R.E. 404(b) by

admitting “other acts” evidence at his trial would not entitle him to habeas

relief because this claim is non-cognizable on habeas review. See Bey v.

Bagley, 500 F 3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72

(Supreme Court’s habeas powers did not permit Court to reverse state

court conviction based on their belief that the state trial judge erred in ruling

that prior injury evidence was admissible as bad acts evidence under

California law). The admission of this “other acts” evidence against

petitioner at his state trial does not entitle him to habeas relief, because

there is no clearly established Supreme Court law which holds that a state

violates a habeas petitioner’s due process rights by admitting propensity

-17-
evidence in the form of “prior bad acts” evidence. See Bugh v. Mitchell, 329

F. 3d 496, 512 (6th Cir. 2003). Petitioner is not entitled to habeas relief on

his first or second claims.

B. Claim # 3. The right to present a defense claim.

Petitioner next contends that he was denied his right to present a

defense when the trial judge refused to permit petitioner’s mother Imogene

Ruth Cochrane to testify that B.K. told her that she was in the upper level of

her bunk bed when petitioner abused her. Petitioner claims that this

testimony was admissible to impeach B.K., who initially testified that she

did not tell Cochrane that she was in the bunk bed, but then testified that

she did not remember the conversation with Cochrane. The trial judge

excluded the testimony on the grounds that it was hearsay. 

Just as an accused has the right to confront the prosecution’s

witnesses for the purpose of challenging their testimony, he or she also has

the right to present his or her own witnesses to establish a defense. This

right is a fundamental element of the due process of law. Washington v.

Texas, 388 U.S. 14, 19 (1967); See also Crane v. Kentucky, 476 U.S. 683,

690 (1986)(“whether rooted directly in the Due Process Clause of the

Fourteenth Amendment, or in the Compulsory Process or Confrontation

-18-
clauses of the Sixth Amendment, the Constitution guarantees criminal

defendants ‘a meaningful opportunity to present a complete

defense’”)(internal citations omitted). However, an accused in a criminal

case does not have an unfettered right to offer evidence that is

incompetent, privileged, or otherwise inadmissible under the standard rules

of evidence. Montana v. Egelhoff, 518 U.S. 37, 42 (1996). The Supreme

Court, in fact, has indicated its “traditional reluctance to impose

constitutional constraints on ordinary evidentiary rulings by state trial

courts.” Crane, 476 U.S. at 689. The Supreme Court gives trial court

judges “wide latitude” to exclude evidence that is repetitive, marginally

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

issues. Id. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). 

The Michigan Court of Appeals agreed that the trial court erred in

excluding Cochrane’s testimony, but found the error to be harmless:

Another witness, Cheryl Andreen, testified that she wrote in her

statement to the police that MK (sic) “indicated” that the abuse

occurred when she was in the upper bunk bed in her bedroom. 

Andreen also testified that she was never told that the abuse

occurred in the bathroom. Andreen’s testimony regarding BK’s

prior inconsistent statement impeached BK’s testimony denying

that she told Andreen about the bunk bed. Although Andreen’s

testimony did not specifically impeach BK’s testimony that she

could not remember her statements to Cochrane, it fulfilled the

same purpose of Cochrane’s excluded testimony, with the

-19-
advantage that Andreen had no familial bias in defendant’s

favor. Consequently, it is not more probable than not that the

outcome would have been different if the jury had heard the

same testimony from Cochrane. Therefore, the error was

harmless.

People v. Vance, 2016 WL 370030, at * 7.

In the present case, the trial court’s ruling did not deprive petitioner of

a fundamentally fair trial. Although the trial judge did not allow Ms.

Cochrane to testify about B.K.’s prior inconsistent statement, Ms. Andreen

was permitted to testify that she wrote in her statement to the police that

B.K. informed Andreen that the abuse occurred when B.K. was in the upper

bunk bed in her bedroom. Andreen also testified that B.K. never told her

that the sexual abuse occurred in the bathroom. The trial court’s exclusion

of testimony from Ms. Cochrane about B.K.’s prior inconsistent statement

was not so egregious that it effectively denied petitioner a fair trial, in light

of the fact that petitioner was not completely barred from presenting

testimony that B.K. had given prior inconsistent statements concerning

where the sexual assaults had taken place. See Fleming v. Metrish, 556

F.3d 520, 535-36 (6th Cir. 2009). With the quantum of evidence on the

defense theory in the record, this Court concludes that the petitioner was

afforded “a meaningful opportunity to present a complete defense.” Allen v.

-20-
Howes, 599 F. Supp. 2d 857, 873 (E.D. Mich. 2009)(citing Crane, 476 U.S.

at 690 (citation and internal quotations omitted)). Petitioner is not entitled

to relief on his third claim.

C. Claim # 4. The prior consistent statements claim.

Petitioner next contends that the trial court erred in permitting the

prosecutor to introduce out of court statements made by the victims to

other witnesses as prior consistent statements, because there were no

allegations of recent fabrication on the part of the victims.

The admission of a prior consistent statement when the declarant is

available for cross-examination at trial, as was the case here, is not a

question that rises to the level of a constitutional violation for purposes of

habeas corpus relief. See United States ex. rel. Gonzalez v. DeTella, 918

F. Supp. 1214, 1222 (N.D. Ill. 1996)(internal citations omitted). Indeed,

there is no violation of the Sixth Amendment’s Confrontation Clause when

the witness testifies at trial and is subject to unrestricted cross-examination.

United States v. Owens, 484 U.S. 554, 560 (1988). As the Supreme Court

has explained, “where the declarant is not absent, but is present to testify

and to submit to cross examination, our cases, if anything, support the

conclusion that the admission of his out of court statements does not

-21-
create a confrontation clause problem.” California v. Green, 390 U.S. 149,

162 (1970). In this situation, “the traditional protections of the oath,

cross-examination, and opportunity for the jury to observe the witness’

demeanor satisfy the constitutional requirements.” Owens, 484 U.S. at 560

(internal citations omitted). 

Petitioner’s claim about the admission of the victims’ prior consistent

statements involves at best an error of state law that is not cognizable in

federal habeas review. See Regan v. Hoffner, 209 F. Supp. 2d 703, 715

(E.D. Mich. 2002). Because the victims were subject to cross-examination

at petitioner’s trial, the admission of their out of court statements presented

no Confrontation Clause problems. Id. Moreover, there is “no Supreme

Court decision holding that the improper use of a witness’s prior consistent

statements violates the Constitution.” Drain v. Woods, 902 F. Supp. 2d

1006, 1037 (E.D. Mich. 2012); aff’d, 595 F. App’x. 558, 561 (6th Cir. 2014). 

Because the admission of the prior consistent statements did not deprive

the petitioner of a fundamentally fair trial, petitioner is not entitled to habeas

relief on his fourth claim. See Benton v. Booker, 403 F. App’x. 984, 986

(6th Cir. 2010).

-22-
D. Claim # 5. The cumulative error claim.

Petitioner next contends that he is entitled to habeas relief because

of cumulative error.

The cumulative weight of alleged constitutional trial errors in a state

prosecution does not warrant federal habeas relief; because there is no

clearly established federal law permitting or requiring the cumulation of

distinct constitutional claims to grant habeas relief. Moore v. Parker, 425

F.3d 250, 256 (6th Cir. 2005). Therefore, petitioner is therefore not entitled

to habeas relief on the grounds of cumulative error. Id. 

E. Claims # 6, 8, 9, and 12. The sentencing claims.

The Court consolidates petitioner’s four sentencing claims together

for judicial clarity. 

Petitioner in his sixth and eighth claims challenges the scoring of

several offense variables under the Michigan Sentencing Guidelines.

Petitioner’s claim that the state trial court misapplied the Michigan

Sentencing Guidelines is not a cognizable claim for federal habeas review,

because it is basically a state law claim. See Howard v. White, 76 F. App’x.

52, 53 (6th Cir. 2003); See also Haskell v. Berghuis, 695 F. Supp. 2d 574,

598 (E.D. Mich. 2010). Errors in the application of state sentencing

-23-
guidelines cannot independently support habeas relief. See Kissner v.

Palmer, 826 F. 3d 898, 904 (6th Cir. 2016). Petitioner’s claim that the state

trial court improperly departed above the sentencing guidelines range

would not entitle him to habeas relief, because such a departure does not

violate any of petitioner’s federal due process rights. See Austin v.

Jackson, 213 F. 3d 298, 301 (6th Cir. 2000). 

Petitioner in his ninth claim argues that the sentence of fifteen to fifty

years that he received on the first-degree criminal sexual conduct

convictions was cruel and unusual punishment.

A sentence imposed within the statutory limits is not generally subject

to habeas review. Townsend v. Burke, 334 U.S. 736, 741 (1948); The

offense of first-degree criminal sexual conduct is punishable by up to life in

prison. Petitioner’s sentence of fifteen to fifty years was within the statutory

maximum for the first-degree criminal sexual conduct charges. A sentence

within the statutory maximum set by statute does not normally constitute

cruel and unusual punishment. Austin v. Jackson, 213 F. 3d at 302. 

A habeas petitioner who seeks to challenge the severity of a prison

sentence on Eight Amendment grounds faces a formidable challenge. He

or she may obtain relief only by demonstrating that a state court decision

-24-
contravened or misapplied “clearly established” Supreme Court precedent. 

However, the Supreme Court has acknowledged “that our precedents in

this area have not been a model of clarity.” Lockyer v. Andrade, 538 U.S.

63, 72 (2003). “Indeed, in determining whether a particular sentence for a

term of years can violate the Eighth Amendment, we have not established

a clear or consistent path for courts to follow.” Id. Thus, the Supreme Court

declared that the general applicability of the proportionality standard to

term-of-years sentences was clearly established, but confessed a lack of

clarity as to the factors lower courts should consider in making that

determination. Id. The Supreme Court concluded that “the only relevant

clearly established law amenable to the ‘contrary to’ or ‘unreasonable

application of’ framework is the gross disproportionality principle, the

precise contours of which are unclear, applicable only in the ‘exceedingly

rare’ and ‘extreme’ case.” Id.

In Lockyer, the Supreme Court reversed the Ninth Circuit’s grant of a

writ of habeas corpus on the ground that two twenty-five-year-to-life

sentences imposed under California's “three strikes” law, where the

triggering felony was the theft of $ 150 worth of video tapes, violated the

Cruel and Unusual Punishment Clause of the Eighth Amendment. The

-25-
Supreme Court noted that the “thicket” created by its jurisprudence

consisted primarily of its decisions in Solem v. Helm, 463 US. 277 (1983),

Harmelin v. Michigan, 501 U.S. 957 (1991), and Rummel v. Estelle, 445

U.S. 263 (1980). The California state court observed that the

proportionality rule set forth in Solem was cast into doubt by Harmelin, and

proceeded to analyze Andrade’s sentence under the approach taken in

Rummel, where the Supreme Court rejected a claim that a life sentence

imposed under Texas’ recidivist statute was grossly disproportionate to the

theft felonies that formed the predicate for the sentence. The California

court concluded that Andrade’s sentence was not disproportionate. The

Supreme Court held that this decision was not contrary to or an objectively

unreasonable application of federal law that was clearly established by the

Supreme Court. Lockyer, 538 U.S. at 72-77. 

A plurality of the Supreme Court held that the Eighth Amendment

does not require strict proportionality between the crime and sentence.

Harmelin, 501 U.S. at 965. As the Supreme Court observed in Lockyer, it

is generally recognized after Harmelin that the Cruel and Unusual

Punishment Clause of the Eighth Amendment forbids only an extreme

disparity between crime and sentence, that is, sentences that are “grossly

-26-
disproportionate” to the crime. Id. at 1001 (Kennedy, J., concurring);

Coleman v. Mitchell, 268 F. 3d 417, 453 (6th Cir. 2001)(citing Coker v.

Georgia, 433 U.S. 584, 592 (1977)); United States v. Hopper, 941 F. 2d

419, 422 (6th Cir. 1991)).

“Outside the context of capital punishment, successful challenges to

the proportionality of particular sentences have been exceedingly rare.”

Rummel, 445 U.S. at 272. Rummel was convicted of obtaining $ 120.75 by

false pretenses, a crime punishable by at least two years, but not more

than ten years in prison. He was sentenced as a recidivist to life

imprisonment with the possibility of parole. His two prior felonies consisted

of fraudulent use of a credit card to obtain $ 80 worth of goods and

services, a felony punishable by two to ten years in prison; and passing a

forged check for $ 28.36, a crime punishable by two to five years in prison. 

The Supreme Court held that Rummel’s life sentence under the state

recidivist statute did not constitute cruel and unusual punishment. In

Harmelin, the Supreme Court upheld a life sentence without the possibility

of parole for possession of more than 650 grams of cocaine for an offender

with no prior felony convictions. 

The Supreme Court overturned a life sentence in Solem on the

-27-
ground that it was significantly disproportionate to Helm’s crime and

therefore prohibited by the Eighth Amendment. However, Helm had been

sentenced to life imprisonment without the possibility of parole for uttering a

“no account” check for $ 100, and his prior felonies also were minor,

nonviolent crimes. By contrast, the Supreme Court reaffirmed Rummel and

found constitutionally sufficient a sentence of twenty-five years to life

imposed upon a fifth felony conviction. Ewing v. California, 538 U.S. 11, 24-

31 (2003). 

In the present case, petitioner’s sentence fell within the maximum

sentence set by state law, and “a sentence within the statutory maximum

set by statute generally does not constitute ‘cruel and unusual

punishment.’” United States v. Organek, 65 F. 3d 60, 62 (6th Cir.

1995)(citation omitted)(quoted with approval in Austin v. Jackson, 213 F.

3d at 302); Friday v. Pitcher, 200 F. Supp. 2d 725, 744 (E.D. Mich. 2002). 

“As long as the sentence remains within the statutory limits, trial courts

have historically been given wide discretion in determining ‘the type and

extent of punishment for convicted defendants.’” Austin, 213 F. 3d at 301

(quoting Williams v. New York, 337 U.S. 241, 245 (1949)). 

In light of “the vagueness of the gross-disproportionality principle and

-28-
the admonition that the principle is “applicable only in the ‘exceedingly rare’

and ‘extreme’ case,” this Court concludes that the state courts did not

unreasonably apply clearly established law in rejecting petitioner’s

proportionality claim. See Smith v. Howerton, 509 F. App’x. 476, 484 (6th

Cir. 2012)(internal quotations omitted). Moreover, petitioner’s sentence of

fifteen to fifty years for first-degree criminal sexual conduct was not

disproportionate to the offense or to the offender. See e.g. Stadler v.

Curtin, 682 F. Supp. 2d 807, 829-30 (E.D. Mich. 2010)(sentence of

twenty-five to forty years for first degree criminal sexual conduct was not

disproportionate).

To the extent that petitioner is arguing that the trial court failed to

afford him individualized consideration of mitigating evidence on his behalf,

this claim fails because the U.S. Supreme Court has limited its holding

concerning mitigating evidence to capital cases. Alvarado v. Hill, 252 F.3d

1066, 1069 (9th Cir. 2001)(citing to Harmelin v. Michigan, 501 U.S. at 996). 

Because petitioner had no constitutional right to an individualized sentence,

no constitutional error would occur if the state trial court failed to consider

mitigating evidence on his behalf at sentencing. See Hastings v. Yukins,

194 F. Supp. 2d 659, 673 (E.D. Mich. 2002). 

-29-
Petitioner further claims that the trial court judge failed to consider

petitioner’s rehabilitative potential when fashioning his sentence. 

Petitioner’s claim that the trial court failed to consider his rehabilitative

potential in fashioning his sentence is non-cognizable on federal habeas

review. See Grays v. Lafler, 618 F. Supp. 2d 736, 749 (W.D. Mich. 2008). 

“There is no constitutional principle that prefers rehabilitation over

deterrence and retribution as a goal of sentencing.” Fielding v. LeFevre,

548 F. 2d 1102, 1108 (2nd Cir. 1977). Petitioner is not entitled to relief on

his ninth claim.

In his twelfth claim, petitioner contends that the trial court erred in

ordering petitioner to reimburse the court for the cost of his court-appointed

attorney.

Petitioner is unable to challenge the imposition of attorney fees by the

trial court. Where a habeas petitioner is not claiming the right to be

released but is challenging the imposition of a fine or other costs, he or she

may not bring a petition for writ of habeas corpus. See United States v.

Watroba, 56 F. 3d 28, 29 (6th Cir. 1995). This Court lacks subject matter

over petitioner’s claim that the state court unconstitutionally required him to

pay court-appointed counsel’s fees, because petitioner’s claim does not

-30-
challenge his confinement. See Washington v. McQuiggin, 529 F. App’x.

766, 772–73 (6th Cir. 2013). Petitioner is not entitled to relief on his twelfth

claim.

F. Claims # 7 and # 10. The prosecutorial

misconduct/ineffective assistance of counsel claims.

Petitioner next contends he was denied a fair trial because of

prosecutorial misconduct. Petitioner further argues that counsel was

ineffective for failing to object to the misconduct.

“Claims of prosecutorial misconduct are reviewed deferentially on

habeas review.” Millender v. Adams, 376 F.3d 520, 528 (6th Cir.

2004)(citing Bowling v. Parker, 344 F. 3d 487, 512 (6th Cir. 2003)). A

prosecutor’s improper comments will be held to violate a criminal

defendant’s constitutional rights only if they “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process.’”

Darden v. Wainwright, 477 U.S. 168, 181 (1986)(quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial misconduct will

thus form the basis for habeas relief only if the conduct was so egregious

as to render the entire trial fundamentally unfair based on the totality of the

circumstances. Donnelly v. DeChristoforo, 416 U.S. at 643-45. In order to

obtain habeas relief on a prosecutorial misconduct claim, a habeas

-31-
petitioner must show that the state court’s rejection of his or her

prosecutorial misconduct claim “was so lacking in justification that there

was an error well understood and comprehended in existing law beyond

any possibility for fairminded disagreement.” Parker v. Matthews, 567 U.S.

37, 48 (2012)(quoting Harrington, 562 U.S. at 103). 

Petitioner first argues that the prosecutor committed misconduct by

mentioning in her closing argument that the adults in B.K.’s life were “really

messed up”, pointing out that her mom kept living with petitioner, that the

officer that was originally called did not report it, and that Andreen did not

report it. Petitioner further points to the prosecutor’s comments that the

victims’ respective mothers were “trouble”, that they “were ripe for the

picking”, which is what petitioner did with them, but that the victims’

mothers did not protect their children, which in turn was why they no longer

had custody of the victims. Petitioner suggests that the prosecutor’s

remarks about the victims’ mothers is not supported by the evidence. 

It is improper for a prosecutor during closing arguments to bring to

the jury any purported facts which have not been introduced into evidence

and which are prejudicial; however, prosecutors must be given leeway to

argue reasonable inferences from the evidence. Byrd v. Collins, 209 F. 3d

-32-
486, 535 (6th Cir. 2000). 

In the present case, it was reasonable to infer from the evidence that

the victims’ mothers were dysfunctional and did not immediately report the

sexual assaults to the police. It was also reasonable to infer from the

evidence that petitioner sought out these two women so as to exploit their

children. 

Moreover, petitioner is not entitled to habeas relief on his claim,

because the remarks were isolated and the evidence against the petitioner

was strong. See Macias v. Makowski, 291 F. 3d 447, 453-54 (6th Cir.

2002); Byrd, 209 F. 3d at 536. Any prosecutorial misconduct was also

ameliorated by the trial court’s instruction that the lawyers’ comments and

statements were not evidence. (Tr. 6/10/2004, pp. 116-17). See Hamblin v.

Mitchell, 354 F. 3d 482, 495 (6th Cir. 2003). 

Petitioner further points to the prosecutor’s comments about how

difficult it was for the two victims to testify about their sexual experiences,

but that under the circumstances they did “pretty good.”

To the extent that petitioner is arguing that the prosecutor vouched

for the victims by pointing out how well that they had testified under the

circumstances, he would not be entitled to relief. A prosecutor may not

-33-
express a personal opinion concerning the guilt of a defendant or the

credibility of trial witnesses, because such personal assurances of guilt or

vouching for the veracity of witnesses by the prosecutor “exceeds the

legitimate advocates’ role by improperly inviting the jurors to convict the

defendant on a basis other than a neutral independent assessment of the

record proof.” Caldwell v. Russell, 181 F. 3d 731, 737 (6th Cir.

1999)(internal citations omitted). However, a prosecutor is free to argue

that the jury should arrive at a particular conclusion based upon the record

evidence. Id. The test for improper vouching for a witness is whether the

jury could reasonably believe that the prosecutor was indicating a personal

belief in the witness’ credibility. United States v. Causey, 834 F. 2d 1277,

1283 (6th Cir. 1987). “[G]enerally, improper vouching involves either blunt

comments, or comments that imply that the prosecutor has special

knowledge of facts not in front of the jury or of the credibility and

truthfulness of witnesses and their testimony.” See United States v.

Francis, 170 F. 3d 546, 550 (6th Cir. 1999)(internal citations omitted). It is

worth noting that the Sixth Circuit has never granted habeas relief for

improper vouching. Byrd v. Collins, 209 F.3d at 537 and n. 43. Even on

direct appeal from a federal conviction, the Sixth Circuit has held that to

-34-
constitute reversible error, a prosecutor’s alleged misconduct of arguing his

personal belief, in a witness’ credibility or in a defendant’s guilt, must be

flagrant and not isolated. See United States v. Humphrey, 287 F. 3d 422,

433 (6th Cir. 2002).

Petitioner is not entitled to habeas relief on this claim because the

prosecutor’s comments were brief and isolated. An isolated instance of

vouching does not make a state trial so constitutionally infirm so as to

justify federal habeas relief. See e.g. Joseph v. Coyle, 469 F. 3d 441, 474

(6th Cir. 2006). Secondly, even if this statements amounted to improper

vouching, it did not rise to the level of a due process violation necessary for

federal habeas relief, because the sizeable amount of evidence offered by

the state against petitioner made it unlikely that the jury was misled by this

brief statement. See Wilson v. Mitchell, 250 F. 3d 388, 398 (6th Cir. 2001). 

Lastly, the jury was instructed that the lawyers’ statements and arguments

were not evidence. This instruction by the court cured any prejudice that

may have arisen from any improper vouching. Byrd, 209 F.3d at 537. 

Petitioner further appears to argue that the prosecutor committed

misconduct by introducing prior bad acts evidence against him, in violation

of M.R.E. 404(b). 

-35-
Although petitioner alleges prosecutorial misconduct, his claim

“amounts in the end to a challenge to the trial court’s decision to allow the

introduction of this evidence.” Webb v. Mitchell, 586 F. 3d 383, 397 (6th

Cir. 2009). “A prosecutor may rely in good faith on evidentiary rulings

made by the state trial judge and make arguments in reliance on those

rulings.” Cristini v. McKee, 526 F.3d 888, 900 (6th Cir. 2008). The trial

judge concluded that this evidence was relevant and admissible. There

was no violation of clearly established federal law for the prosecutor to rely

on the trial judge’s ruling in admitting this “other acts” evidence of

petitioner’s sexual assaults against the two different victims at petitioner’s

trial, regardless if the trial judge’s ruling was correct, thus petitioner is not

entitled to habeas relief on his claim. See Key v. Rapelje, 634 F. App’x.

141, 146–47 (6th Cir. 2015).

Petitioner also appears to argue that the prosecutor improperly

denigrated his character and veracity in her closing argument. Petitioner

points to the prosecutor’s statement that petitioner “made up” an incident

in which he caught KV watching a pornographic video, and her statement

that petitioner testified to a “ridiculous” story to explain Cochrane’s

damaging testimony that petitioner went to the police station to admit guilt. 

-36-
The Michigan Court of Appeals rejected the claim, finding that the

prosecutor’s remarks that petitioner was not credible did not imply any

special knowledge, but instead urged the jury to evaluate petitioner’s

credibility based on the jurors’ understanding of what was believable and

what was not. The Michigan Court of Appeals further concluded that the

prosecutor’s characterization of petitioner’s attempt to explain Cochrane’s

testimony about his police contact as “ridiculous” did not attack petitioner

personally, but instead focused on the plausibility of his explanation.

Vance, 2016 WL 370030, at * 13.

The prosecutor’s comments, when viewed in context, indicate that

the prosecutor based her comments on inferences from the evidence

presented in court and not upon any personal knowledge. Because the

prosecutor’s comments about petitioner’s credibility was based on the

evidence presented in court, was only a small portion of the prosecutor’s

argument, and did not create the impression that the prosecutor knew of

evidence not presented to the jury, the prosecutor’s comments did not

deprive petitioner of a fair trial. See Cristini v. McKee, 526 F. 3d at 902. 

The Court will reject petitioner’s related ineffective assistance of

counsel claim. To show that he or she was denied the effective assistance

-37-
of counsel under federal constitutional standards, a defendant must satisfy

a two prong test. First, the defendant must demonstrate that, considering

all of the circumstances, counsel’s performance was so deficient that the

attorney was not functioning as the “counsel” guaranteed by the Sixth

Amendment. Strickland v. Washington, 466 U.S. 668, 687 (1984). Second,

the defendant must show that such performance prejudiced his defense. Id. 

To show prejudice under Strickland for failing to object to

prosecutorial misconduct, a habeas petitioner must show that but for the

alleged error of his trial counsel in failing to object to the prosecutor’s

improper questions and arguments, there is a reasonable probability that

the proceeding would have been different. Hinkle v. Randle, 271 F. 3d

239, 245 (6th Cir. 2001). Because the Court has already determined that

the prosecutor’s remarks did not deprive petitioner of a fundamentally fair

trial, petitioner is unable to establish that he was prejudiced by counsel’s

failure to object to these remarks. Slagle v. Bagley, 457 F. 3d 501, 528 (6th

Cir. 2006). Petitioner is not entitled to habeas relief on his seventh and

tenth claims. 

-38-
G. Claim # 11. The failure to direct a verdict claim.

Petitioner finally contends that the trial court committed error by

failing to state any reasons for denying his motion for a directed verdict, in

violation of M.C.R. 6.419(F). 

In King v. Trippett, 27 F. App’x. 506 (6th Cir. 2001), the Sixth Circuit

held that the state court’s misapplication of state law in failing to grant the

petitioner’s motion for a directed verdict was not cognizable in a federal

habeas corpus proceeding. Id., at 510 (citing Estelle, 502 U.S. at 67-68). 

Thus, the trial court’s alleged violation of M.C.R. 6.419(F) in failing to give

reasons for denying petitioner’s motion for a directed verdict does not

entitle him to habeas relief. 

IV. Conclusion 

The Court will deny the petition for writ of habeas corpus. 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

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

-39-
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, the Court will deny petitioner a

certificate of appealability because he has 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 will also deny petitioner

leave to appeal in forma pauperis, because the appeal would be frivolous.

Id. 

V. ORDER

Based upon the foregoing, IT IS ORDERED that the Petition for a

Writ of Habeas Corpus is DENIED WITH PREJUDICE.

IT IS FURTHER ORDERED That a Certificate of Appealability is

DENIED.

-40-
IT IS FURTHER ORDERED that Petitioner will be DENIED leave to

appeal in forma pauperis.

Dated: September 21, 2017

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

September 21, 2017, by electronic and/or ordinary mail and

also Michael Vance #501288, Parnall Correctional Facility,

1780 E. Parnall, Jackson, MI 49201.

s/Barbara Radke

Deputy Clerk

-41-