1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANDREW DOBEK, #537038,

Petitioner,

CASE NO. 2:08-CV-13968

v. HONORABLE VICTORIA A. ROBERTS

MARY BERGHUIS,

Respondent.

_____________________________________/

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS

CORPUS BUT GRANTING A CERTIFICATE OF APPEALABILITY

I. Introduction

Michigan prisoner Andrew Dobek (“Petitioner”), through counsel, has filed a pro se

petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 challenging his 2005 Livingston

County Circuit Court convictions on five counts of first-degree criminal sexual conduct (“CSC

1"), MICH. COMP. LAWS § 750.520b(1)(a), three counts of second-degree criminal sexual conduct

(“CSC 2"), MICH. COMP. LAWS § 750.520c(1)(a), and two counts of assault with intent to

commit criminal sexual conduct, MICH. COMP. LAWS § 750.520g(1). Petitioner was sentenced to

concurrent terms of 25 to 40 years imprisonment on the CSC 1 convictions, concurrent terms of

10 to 15 years imprisonment on the CSC 2 convictions, and concurrent terms of 6 to 10 years on

the assault convictions.

In his pleadings, Petitioner raises several claims of prosecutorial misconduct. The Court

concludes that Petitioner is not entitled to federal habeas relief and denies the petition. However,

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 1 of 22 Pg ID 3274
2

the Court grants Petitioner a certificate of appealability on his habeas claims.

II. Facts and Procedural History

Petitioner’s convictions arise from the sexual assault of his stepdaughter at their home in

Howell, Michigan in 1995. The Michigan Court of Appeals provided a factual overview of the

case, which is presumed correct on habeas review, see Monroe v. Smith, 197 F. Supp. 2d 753,

758 (E.D. Mich. 2001), aff’d. 41 F. App’x 730 (6th Cir. 2002), as follows:

All the convictions arise out of allegations by defendant's stepdaughter

concerning improper and illegal sexual conduct by defendant that occurred in

1995 when the victim was 12 years old. She was 22 years old when trial took

place in May of 2005. Although there were ten specific criminal counts charged

against defendant, the complainant testified that defendant sexually molested her

hundreds of times over the years between, roughly, the ages of 8 and 13. The

charged offenses occurred in the Dobek family home during two separate

incidents on different dates, the first in defendant's bedroom and the second in the

kitchen. The sexual conduct involved attempted vaginal and anal intercourse,

fellatio, cunnilingus, digital penetration of the victim's vagina, genital fondling,

and, in general, inappropriate touching.

The prosecution presented the testimony of the victim, a police officer who

initially took the victim's statement, and Detective Bruce Leach, who extensively

interviewed the victim and handled the investigation of the case. Defendant

presented the testimony of his wife,FN1 his brother, two adult daughters, a

physician who saw the victim in 2000, defendant's ex-wife, and defendant's

sister-in-law, who was declared a hostile witness. Defendant himself also took

the stand. He denied any sexual misconduct, and defendant's witnesses, in

general, testified that they never observed any inappropriate behavior on

defendant's part and testified to defendant's good character. On rebuttal, the

prosecution presented the testimony of a former family babysitter. Defendant was

convicted and sentenced to 25 to 40 years imprisonment for the CSC I

convictions, 10 to 15 years imprisonment for the CSC II convictions, and 6 to 10

years imprisonment for the sexual assault convictions, all sentences to be served

concurrently.

FN1. She is the victim’s mother.

People v. Dobek, 274 Mich. App. 58, 62-63, 732 N.W.2d 546 (2007).

Petitioner filed an appeal of right with the Michigan Court of Appeals raising several

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 2 of 22 Pg ID 3275
3

claims of error, including those presented on habeas review. The court affirmed his convictions. 

Id. at 107. Petitioner filed an application for leave to appeal with the Michigan Supreme Court,

which was denied. People v. Dobek, 480 Mich. 897, 738 N.W.2d 763 (2007).

Petitioner thereafter filed this habeas petition, asserting that the prosecutor engaged in

misconduct by: (1) personally vouching for the victim’s credibility, (2) personally assuring that

the defense witnesses were unworthy of belief, (3) denigrating defense counsel and disparaging

the defense case, (4) improperly questioning Petitioner about his religion, and (5) presenting the

officer-in-charge as a human lie detector. Petitioner asserts that the prosecutor’s conduct

violated his due process rights and deprived him of a fair trial.

III. Standard of Review

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 28

U.S.C. § 2241 et seq., governs this case because Petitioner filed his habeas 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

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 3 of 22 Pg ID 3276
4

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

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

nevertheless arrives at a result different from [that] precedent.’” Mitchell v. Esparza, 540 U.S.

12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)); see

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

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

correct governing legal principle from [the Supreme] Court 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 to 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. _, _ S. Ct. _, 2011 WL

148587, *11 (Jan. 19, 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

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 4 of 22 Pg ID 3277
5

(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 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, slip op. at *10. 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

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 5 of 22 Pg ID 3278
6

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. Discussion

A. Procedural Default of Certain Claims

As an initial matter, Respondent asserts that all but one of Petitioner’s prosecutorial

misconduct claims concerning closing argument and his prosecutorial misconduct claim

concerning Howell Police Detective Bruce Leach’s testimony are barred by procedural default

because Petitioner waived those claims and/or failed to properly object during trial.

Federal habeas relief may be precluded on a claim 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); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991). 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). “A procedural default does not bar consideration of a federal claim on either direct or

habeas review unless the last state court rendering a judgment in the case ‘clearly and

expressly’ states that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S.

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 6 of 22 Pg ID 3279
1

The record reveals that defense counsel objected to the prosecutor’s remarks about her

18 years of experience and claimed that she was improperly vouching for the victim. Defense

counsel also objected to the prosecutor’s remarks which he believed were shifting the burden of

proof. Defense counsel did not object to the prosecutor’s remarks about the credibility of

defense witnesses or defense counsel.

7

255, 263-64 (1989). The last explained state court judgment should be used to make this

determination. See Ylst v. Nunnemaker, 501 U.S. 797, 803-05 (1991).

The Michigan Court of Appeals rendered the last reasoned opinion on these claims. In

denying relief on all but one of the claims concerning closing arguments,1

 the court relied upon

defense counsel’s failure to object and to contest the disputed remarks when he moved for a

mistrial based upon prosecutorial misconduct. See Dobek, 274 Mich. App. at 64-66 (ruling that

Petitioner “affirmatively and intentionally abandoned or relinquished, with one exception, any

claims of prosecutorial misconduct arising out of the prosecutor’s closing argument when [he]

asserted ‘closing argument’ misconduct in the mistrial motion, cited prosecutorial comments

not at issue on appeal, and then expressly stated that there were no further claims.). The court

also relied upon defense counsel’s failure to object in denying relief on Petitioner’s claim

concerning Detective Leach’s testimony. Id. at 71. Such waiver and/or failure to object is a

recognized and firmly-established independent and adequate state law ground for refusing to

review trial errors. See People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000); People

v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999); People v. Stanaway, 446 Mich. 643,

687, 521 N.W.2d 557 (1994); see also Coleman v. Thompson, 501 U.S. 722, 750-51 (1991).

Moreover, a state court does not waive a procedural default by looking beyond the

default to determine if there are circumstances warranting review on the merits. See Paprocki v.

Foltz, 869 F.2d 281, 285 (6th Cir. 1989). Plain error review does not constitute a waiver of

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 7 of 22 Pg ID 3280
8

state procedural default rules. See Girts v. Yanai, 501 F.3d 743, 755 (6th Cir. 2007); Hinkle v.

Randle, 271 F.3d 239, 244 (6th Cir. 2001); Seymour v. Walker, 224 F.3d 542, 557 (6th Cir.

2000). Nor does a state court fail to sufficiently rely upon a procedural default by ruling on the

merits in the alternative. See McBee v. Abramajtys, 929 F.2d 264, 267 (6th Cir. 1991). The

Michigan Court of Appeals denied these claims based upon a procedural default – waiver

and/or the failure to object at trial.

Petitioner asserts that he did not affirmatively waive all other instances of prosecutorial

misconduct by basing his mistrial motion on certain conduct, but acknowledges that he did not

object to the challenged closing arguments at trial. Thus, for purposes of habeas review,

Petitioner has procedurally defaulted his prosecutorial misconduct claims concerning closing

arguments, other than the vouching argument specifically objected to during trial, as well as his

claim concerning Detective Leach’s testimony.

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, 501 U.S. at 753; Gravley v. Mills, 87 F.3d 779, 784-85 (6th Cir. 1996). 

To establish cause, a petitioner must establish that some external impediment frustrated his

ability to comply with the state’s procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). 

A petitioner must present a substantial reason to excuse the default. See Amadeo v. Zant, 486

U.S. 214, 223 (1988). Such reasons include interference by officials, attorney error rising to the

level of ineffective assistance of counsel, or a showing that the factual or legal basis for a claim

was not reasonably available. See McCleskey v. Zant, 499 U.S. 467, 493-94 (1991).

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 8 of 22 Pg ID 3281
9

Petitioner neither alleges nor establishes cause to excuse his procedural default. The

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

excuse a procedural default. See Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen,

722 F.2d 286, 289 (6th Cir. 1983); Bell v. Smith, 114 F. Supp. 2d 633, 638 (E.D. Mich. 2000). 

Nonetheless, the Court notes that Petitioner cannot establish prejudice, since the prosecutorial

misconduct claims concerning closing argument lack merit for the reasons stated by the

Michigan Court of Appeals in reviewing them for plain error, see Dobek, 274 Mich. App. at 66-

68, 71, and as discussed more fully infra.

Petitioner has also not shown that a fundamental miscarriage of justice 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 Schlup v. Delo, 513 U.S. 298,

326-27 (1995). “‘[A]ctual innocence’ means factual innocence, not mere legal insufficiency.” 

Bousley v. United States, 523 U.S. 614, 624 (1998). “To be credible, [a claim of actual

innocence] requires petitioner to support his allegations of constitutional error with new reliable

evidence – whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or

critical physical evidence – that was not presented at trial.” Schlup, 513 U.S. at 324. Petitioner

has made no such showing. These claims are barred by procedural default, lack merit, and do

not warrant habeas relief.

B. Merits of Prosecutorial Misconduct Claims

Petitioner asserts that he is entitled to habeas relief due to prosecutorial misconduct

which violated his due process rights and deprived him of a fair trial. The United States

Supreme Court stated that prosecutors must “refrain from improper methods calculated to

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 9 of 22 Pg ID 3282
10

produce a wrongful conviction.” Berger v. United States, 295 U.S. 78, 88 (1935). To prevail

on a claim of prosecutorial misconduct, a habeas petitioner must demonstrate that the

prosecutor's remarks “so infected the trial with unfairness as to make the resulting conviction a

denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).

The United States Court of Appeals for the Sixth Circuit adopted a two-part test for

determining whether prosecutorial misconduct violates a defendant's due process rights. See

Macias v. Makowski, 291 F.3d 447, 452 (6th Cir. 2002) (citing cases). First, the court must

determine whether the challenged statements were indeed improper. Id. at 452. Upon a finding

of impropriety, the court must decide whether the statements were flagrant. Id. Flagrancy is

determined by an examination of four factors: 1) whether the statements tended to mislead the

jury or prejudice the accused; 2) whether the statements were isolated or among a series of

improper statements; 3) whether the statements were deliberately or accidentally before the

jury; and 4) the total strength of the evidence against the accused. Id.; see also Slagle v. Bagley,

457 F.3d 501, 515-16 (6th Cir. 2006); Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000)

(citing United States v. Francis, 170 F.3d 546, 549-50 (6th Cir. 1999)). “[T]o constitute the

denial of a fair trial, prosecutorial misconduct must be ‘so pronounced and persistent that it

permeates the entire atmosphere of the trial,’ or ‘so gross as probably to prejudice the

defendant.’” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997) (citations omitted).

Petitioner first asserts that the prosecutor committed misconduct by personally vouching

for the victim’s credibility. Specifically, Petitioner objects to the prosecutor’s use of the

phrases “trust me” and “I’m here to tell you” when discussing the victim’s testimony and

credibility, the prosecutor’s remark that the victim had not been coached, and the prosecutor’s

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 10 of 22 Pg ID 3283
11

statement that she is “bound to follow the law” and her reference to her 18 years of experience

in prosecuting child sexual abuse cases.

It is well-settled that it is improper for a prosecutor to express his or her own personal

opinions as to a witness’s credibility. See United States v. Young, 470 U.S. 1, 9-10 (1985);

Hodge v. Hurley, 426 F.3d 368, 378 (6th Cir. 2005); United States v. Modena, 302 F.3d 626,

634 (6th Cir. 2002). Such statements are improper because they can convey the impression that

the prosecutor has evidence not presented to the jury which supports the charges against the

defendant thereby infringing upon the defendant’s right to be judged solely based upon the

evidence presented and because the prosecutor’s opinion carries with it the imprimatur of the

Government and may induce the jury to trust the Government's judgment rather than its own. 

Young, 470 U.S. at 18-19; Cristini v. McKee, 526 F.3d 888, 901 (6th Cir. 2008); see also Wilson

v. Bell, 368 F. App’x 627, 633 (6th Cir. 2010) (citing cases).

The Michigan Court of Appeals denied relief on this claim, finding that the claims of

improper vouching lacked merit and there was no prosecutorial misconduct. The court

explained that the prosecution has “wide latitude” to argue the facts and reasonable inferences

and ruled that “the challenged comments reflected arguments from the facts and testimony that

the witnesses at issue were credible or worthy of belief....The prosecutor did not imply that she

had some special knowledge that the witnesses were testifying truthfully.” Dobek, 274 Mich.

App. at 66. The court further found that the prosecutor’s remarks regarding the status of the

case and her experiences as a prosecutor were “appropriately responsive to defendant’s closing

comments, . . . did not constitute plain error affecting substantial rights, . . . were harmless,

lacking prejudicial effect, . . . or could have been cured with a timely instruction.” Id. at 67

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 11 of 22 Pg ID 3284
12

(citations omitted).

This decision is neither contrary to Supreme Court precedent nor an unreasonable

application of federal law or the facts. The prosecutor did not improperly vouch for the victim

(or other prosecution witnesses). A review of the record reveals that the prosecutor based her

arguments on the testimony and argued from the evidence that the victim was credible and

should be believed. A prosecutor has leeway to argue the evidence and reasonable inferences

therefrom. See Byrd v. Collins, 209 F.3d 486, 535 (6th Cir. 2000). Moreover, a prosecutor may

argue from the facts that a witness is (or is not) worthy of belief. See Portuondo v. Agard, 529

U.S. 61, 69 (2000). The prosecutor’s use of the phrases “trust me” and “I’m here to tell you”

were introductory to her remarks on the victim’s testimony and why the jury should find her

credible. The prosecutor did not improperly vouch for the victim or imply that she had

knowledge of facts which were not presented to the jury.

Furthermore, the prosecutor’s remark that the victim had not been coached was made in

response to defense claims that the victim was lying and was unable to recall events accurately. 

The prosecutor’s statement that she is “bound to follow the law” and her reference to her 18

years of experience were made in response to defense arguments about the unfairness of the

delay in prosecution and the quality of the evidence at trial. When considered in context, such

comments can reasonably be viewed as proper rebuttal. Petitioner failed to establish that the

prosecutor improperly vouched for the victim (or other prosecution witnesses) or that any such

comments rendered the trial fundamentally unfair. Habeas relief is not warranted.

Petitioner also asserts that the prosecutor engaged in misconduct by personally assuring

that the defense witnesses were unworthy of belief. Specifically, Petitioner contests the

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 12 of 22 Pg ID 3285
13

prosecutor’s remark that the testimony of Kathleen Dobek, Petitioner’s wife and the victim’s

mother, was “worthless” and her argument that “Kathleen Dobek would rather have the

defendant in her home, in her bed, than her own child in her home. And so I submit to you that

she – I would not believe a word that she says.”

As noted, it is inappropriate for a prosecutor to express a personal opinion as to a

defendant’s guilt or a witness’s credibility. See Young, 470 U.S. at 9-10; Hurley, 426 F.3d at

378; Modena, 302 F.3d at 634. However, a prosecutor may argue from the facts that a witness,

including a defense witness or a testifying defendant, is or is not worthy of belief. See

Portuondo, 529 U.S. at 69; Cristini, 526 F.3d at 901-02.

The Michigan Court of Appeals denied relief on this claim stating, in relevant part, that

the prosecutor “was permitted to argue from the facts that defendant’s witnesses were unworthy

of belief.” Dobek, 274 Mich. App. at 67. This decision is neither contrary to Supreme Court

precedent nor an unreasonable application of federal law or the facts. As noted, a prosecutor

has leeway to argue reasonable inferences from the evidence, see Byrd, 209 F.3d at 535, and to

argue from the facts that a witness is or is not worthy of belief. See Portuondo, 529 U.S. at 69. 

The prosecutor did just that. While her use of the phrase “I would not believe a word that she

says” could be seen as improper when viewed out of context, it can reasonably be seen as a

request for the jury to discredit the witness’s testimony based upon the facts and circumstances

of the case when viewed in context. The prosecutor based her credibility arguments on the trial

testimony and did not imply that she had special knowledge of facts not presented to the jury. 

While perhaps inartfully-worded, the argument was appropriate under the circumstances. 

Habeas relief is not warranted.

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 13 of 22 Pg ID 3286
14

Petitioner also asserts that the prosecutor engaged in misconduct by denigrating defense

counsel and disparaging the defense case. In particular, Petitioner challenges the prosecutor’s

comments that Petitioner had difficulty testifying when he “wasn’t on script and talking to his

lawyers,” the prosecutor’s statement that defense counsel objected to questions and took other

actions “in an effort to try and cover up the truth,” to be “sneaky,” and to create reasonable

doubt, and the prosecutor’s references to defense “red herrings” during closing argument.

It is well-established that it is inappropriate for a prosecutor to make personal attacks on

a defendant or defense counsel. See United States v. Collins, 78 F.3d 1021, 1040 (6th Cir.

1996). Prosecutors may not “make unfounded and inflammatory attacks on the opposing

advocate,” United States v. Young, 470 U.S. 1, 9 (1985), “or argue that counsel is attempting to

mislead the jury.” West v. Bell, 550 F.3d 542, 565 (6th Cir. 2008). Prosecutors may, however,

highlight inconsistencies or inadequacies in the defense, Bates v. Bell, 402 F.3d 635, 646 (6th

Cir. 2005), point out the lack of evidence supporting the defense theory, United States v.

Forrest, 402 F.3d 678, 686 (6th Cir. 2005), and argue from the facts that a defense witness,

including a testifying defendant, is not worthy of belief. See Portuondo, 529 U.S. at 69;

Christini, 526 F.3d at 901-02. Moreover, a prosecutor’s description of a defense argument as a

red herring, a smoke screen, or a distraction is not per se improper. See United States v.

Bernard, 299 F.3d 467, 487-88 (5th Cir. 2002); United States v. Rivera, 971 F.2d 876, 883 (2d

Cir. 1992). 

The Michigan Court of Appeals denied relief on this claim, finding that nothing was

stated which required reversal, and that Petitioner had not shown plain error affecting his

substantial rights:

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 14 of 22 Pg ID 3287
15

While the prosecutor was aggressive and arguably crossed the line with some of

her remarks, other remarks were valid commentary based on the evidence and

testimony and inferences arising therefrom. The prosecutor was permitted to

argue from the facts that defendant or defendant's witnesses were unworthy of

belief. Howard, supra at 548, 575 NW2d 16. The prosecutor's designation of

defense counsel's arguments as “red herrings” did not generate the type of

accusatory prejudice decried in People v. Dalessandro, 165 Mich App 569,

579-580, 419 NW2d 609 (1988). Therefore, defendant's reliance on Dalessandro

is misplaced. Although the prosecutor's comments might have suggested that

defense counsel was trying to distract the jury from the truth, the comments

were, in general, properly made in response to defense counsel's suggestion that

the prosecutor failed to recognize evidence that was allegedly problematic to the

prosecution's theory. See Watson, supra at 592-593, 629 NW2d 411 (similarly

rejecting a defendant's claim that reversal was warranted on the basis of “red

herring” statements made by the prosecutor). Moreover, assuming some of the

prosecutor's comments were improper, any prejudicial effect could have been

cured by a timely instruction, and, therefore, reversal is unwarranted.

Dobek, 274 Mich. App. at 67-68.

This decision is not contrary to Supreme Court precedent, and it is not an unreasonable

application of it. The prosecutor’s comments on Petitioner’s credibility and conduct were based

upon his testimony and demeanor at trial, and were fair game given that he testified in his own

defense. The prosecutor argued that Petitioner and defense witnesses were not worthy of belief

based upon the facts. Similarly, the prosecution did not err by challenging the credibility of

other defense witnesses or using the term “red herring” to highlight flaws in the defense theory

of the case – particularly where such arguments were derived from the trial testimony and were

made in response to defense arguments about the quality of the prosecution’s case. See, e.g.,

Ratajczak v. Romanowski, No. 2:08-CV-10102, 2010 WL 2232340, *16 (E.D. Mich. June 2,

2010) (denying relief on similar claim).

As the Michigan Court of Appeals seems to have acknowledged, some of the

prosecutor’s criticisms of defense counsel crossed the line of propriety. In particular, this Court

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 15 of 22 Pg ID 3288
16

is troubled by the prosecutor’s assertion that defense counsel was trying to cover up the truth

and mislead the jury. To the extent that those comments constituted personal attacks on defense

counsel and his integrity, they were clearly improper. See, e.g., West, 550 F.3d at 565; accord

United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005). When reviewed in the context of

the entire closing arguments and the trial as a whole, however, such remarks were not so

pervasive or flagrant that they denied Petitioner a fundamentally fair trial. This Court does not

condone such remarks by the prosecutor, and may have decided the issue differently if the case

were on direct appeal. However, the Court cannot conclude that the Michigan Court of Appeals’

denial of relief was unreasonable, given the deference due state court rulings under the AEDPA.

Moreover, as noted by the Michigan Court of Appeals, see Dobek, 274 Mich. App. at 66

n. 3, the potential prejudice arising from any improper closing remarks by the prosecutor was

mitigated by the trial court’s jury instructions that the attorneys’ comments were not evidence,

that Petitioner was innocent until proven guilty, that the jurors were responsible for deciding

witness credibility, and that they should only consider the evidence presented at trial in

rendering a verdict. Jurors are presumed to following the trial court’s instructions. See Penry v.

Johnson, 532 U.S. 782, 799 (2001) (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987));

United States v. Powell, 469 U.S. 57, 66 (1984) (“Jurors...take an oath to follow the law as

charged, and they are expected to follow it.”). Petitioner has not shown that any improper

prosecutorial remarks rendered his trial fundamentally unfair. Habeas relief is not warranted.

Petitioner also asserts that the prosecutor engaged in misconduct by improperly

questioning him about his religion. Defense counsel first broached the subject of religion by

eliciting testimony from Petitioner that the victim could have sought guidance from a priest if

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 16 of 22 Pg ID 3289
17

she was subject to sexual abuse or had other problems. On cross-examination, the prosecution

responded by asking Petitioner whether his conduct was consistent with his faith. The

Michigan Court of Appeals described the situation:

On direct examination by defense counsel, defendant testified as follows:

So I-but also the kids are Catholic and [my wife] is. We go to church. They were

brought up with-in the Catholic faith. They went to catechism. They learned all

their sacraments and received ‘em all.

Therefore, defendant first introduced faith and religion into the trial. On

cross-examination, the prosecutor asked defendant whether he was a practicing

Catholic and whether he was a member of a Catholic Church in the 1990s, to

which defendant replied in the affirmative. The prosecutor next asked defendant

whether his behavior was consistent with the tenets of the Catholic faith;

however, before defendant could answer, defense counsel objected, and the trial

court sustained the objection, ordering the prosecutor to stop pursuing the

religious line of questioning. That was the last inquiry into religion.

Dobek, 274 Mich. App. at 72-73.

It is generally improper for a prosecutor to question a witness or a testifying defendant

about his or her religious beliefs. Under Michigan law, a prosecutor may not generally inquire

into a witness's religious beliefs. See MICH. COMP. LAWS § 600.1436; People v. Bouchee, 400

Mich. 253, 262, 253 N.W.2d 626 (1977); see also MICH. R. EVID. 610 (“Evidence of the beliefs

or opinions of a witness on matters of religion is not admissible for the purpose of showing that

by reason of their nature the witness's credibility is impaired or enhanced.”). Similarly, it can

be improper under federal law for a prosecutor to inquire into a witness's or criminal defendant's

religious beliefs. See, e.g., United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir.

1995). However, not all questions about religion or personal beliefs are improper under state or

federal law. Such an inquiry is appropriate when relevant and probative of an issue in a

criminal prosecution. See, e.g., People v. Calloway, 180 Mich. App. 295, 298, 446 N.W.2d 870

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 17 of 22 Pg ID 3290
18

(1989); United States v. Beasley, 72 F.3d 1518, 1527 (11th Cir. 1996).

The Michigan Court of Appeals acknowledged that questioning a witness about

religious beliefs is improper, but denied relief, finding that defense counsel opened the door on

religion, that the prosecutor responded in good faith, and that the trial court properly halted the

questioning such that Petitioner was not prejudiced. The court explained:

Here the prosecutor attempted to inquire about defendant's Catholic beliefs in

order to show that the beliefs were inconsistent with his behavior; however, the

trial court ended the questioning, and thus the only information elicited by the

prosecutor was that defendant was a member of a Catholic church in the 1990s

and practiced his faith. This is no more than, and is indeed less than, that which

was divulged to the jury on direct examination of defendant by his counsel. In

the context of prosecutorial misconduct, it would appear that the prosecutor was

proceeding in good faith, given that defendant had opened the door on the issue;

however, the case law does not support the road down which the prosecutor was

heading. Regardless, in light of the trial court's wisdom in swiftly and

commendably stopping the religious line of questioning, we cannot conclude that

defendant was denied a fair and impartial trial or that reversal is necessary.

Moreover, the content or substance of defendant's Catholic beliefs was never

explored, and thus reversal is unwarranted.

Dobek, 274 Mich. App. at 75-76.

This decision is neither contrary to Supreme Court precedent nor an unreasonable

application of federal law or the facts. While the prosecutor’s questions about Petitioner’s

religious beliefs were likely improper, they were conceivably made in good faith in response to

defense counsel’s prior examination of Petitioner. More importantly, however, the trial court

promptly put an end to the inquiry before prejudicial comments were made, and the parties did

not further discuss Petitioner’s religious beliefs. Given such circumstances, Petitioner cannot

establish that he was prejudiced by the prosecutor’s conduct or that he was deprived of a

fundamentally fair trial. Habeas relief is not warranted.

Lastly, Petitioner asserts that the prosecutor engaged in misconduct by presenting the

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 18 of 22 Pg ID 3291
19

officer-in-charge, Detective Leach, as a human lie detector to bolster the victim’s credibility. In

particular, Petitioner objects to Leach’s testimony regarding his investigative techniques and the

victim’s demeanor and Leach’s statements on re-direct examination that he had “no concerns

about lying” and that he submitted arrest warrants for Petitioner to the prosecutor’s office.

Under Michigan law, it is generally improper for an expert or lay witness to offer an

opinion on the credibility of another witness because it is for the jury to determine such matters. 

See, e.g., People v. Peterson, 450 Mich. 349, 352, 537 N.W.2d 857 (1995); People v. Buckey,

424 Mich. 1, 17, 378 N.W.2d 432 (1985). The Michigan Court of Appeals denied relief on this

claim:

Again, this issue is as much an evidentiary issue as it is a prosecutorial

misconduct matter; therefore, we focus on whether the prosecutor elicited the

testimony in good faith. Noble, supra at 660, 608 NW2d 123. It is generally

improper for a witness to comment or provide an opinion on the credibility of

another witness, because credibility matters are to be determined by the jury.

People v. Buckey, 424 Mich 1, 17, 378 NW2d 432 (1985); People v. Smith, 158

Mich App 220, 230-231, 405 NW2d 156 (1987). An expert may not vouch for

the veracity of a victim. People v. Peterson, 450 Mich 349, 352, 537 NW2d 857

(1995), mod 450 Mich 1212, 548 NW2d 625 (1995). Leach testified about his

background and experience, the manner in which to properly investigate and

interview subjects in criminal sexual conduct cases, his interview of the victim

and her demeanor, and delayed disclosure in criminal sexual conduct cases. Only

after defense counsel delved into “ deception” issues on cross-examination of the

detective FN5 did Leach testify on redirect that he had no concerns about lying in

this case. Defendant did not object to this testimony, nor to the prosecutor's

question that elicited the testimony. Assuming plain error, defendant has not

established prejudice, actual innocence, or damage to the integrity of the judicial

proceedings. Carines, supra at 763, 597 NW2d 130. Given that Leach was called

as a witness by the prosecutor and that a criminal prosecution against defendant

was pursued, the jurors surely understood that Leach believed that the victim was

telling the truth even without the disputed testimony. Regardless, we cannot

conclude that the prosecutor proceeded with the questioning and elicited the

testimony in bad faith, especially considering that defendant opened the door on

the matter.

FN5. After Leach acknowledged that the victim appeared uncomfortable,

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 19 of 22 Pg ID 3292
20

defense counsel asked Leach if, on the basis of his 31 years of police work,

people who tell “untrue” things sometimes appear uncomfortable, to which

Leach replied, “Sure.”

Dobek, 274 Mich. App. at 70-71.

This decision is neither contrary to Supreme Court precedent, nor an unreasonable

application of it. Detective Leach’s testimony about the criminal investigation and Petitioner’s

arrest was relevant and admissible under state law. His description of the victim’s demeanor

and her actions during the course of the investigation were appropriate to assist the jurors in

understanding the events leading to trial and in making their own credibility determinations. 

See, e.g., Bixler v. Bell, No. 06-CV-11781, 2007 WL 4570073, *4 (E.D. Mich. Dec. 26, 2007)

(denying relief on similar claim stating that “the trial transcript does not indicate improper

vouching, but rather the elicitation of testimony from an individual who is experienced in

assessing whether or not a person is a victim of sexual assault”).

Detective Leach’s specific comment that he had “no concerns about lying” in this case,

while perhaps inappropriate, was isolated, was not misleading, and was made in response to

defense counsel’s inquiry into deception. Furthermore, Petitioner cannot establish prejudice

arising from this testimony. The jurors’ common sense would lead them to think that the

authorities believed that the victim was telling the truth given that Petitioner was criminally

prosecuted. In any event, to the extent that Leach’s testimony regarding the victim’s credibility

was improper, it was offered in good faith and was not so flagrant as to deprive Petitioner of a

fundamentally fair trial. Habeas relief is not warranted.

V. Conclusion

The Court concludes that Petitioner is not entitled to federal habeas relief on the claims

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 20 of 22 Pg ID 3293
21

contained in his petition. Accordingly, the Court DENIES WITH PREJUDICE the petition

for a writ of habeas corpus.

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

(“COA”) must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A COA 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 court denies relief on the merits, the substantial showing

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

assessment of the 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). 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 relief 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 court was correct in its procedural

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

While the Court believes that Petitioner is not entitled to habeas relief, the Court

nonetheless finds that he makes a substantial showing of the denial of a constitutional right on

all of his claims, and that reasonable jurists could debate the correctness of the Court’s

procedural ruling. Petitioner’s claims present constitutional issues worthy of appellate review. 

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 21 of 22 Pg ID 3294
22

Therefore, the Court GRANTS a certificate of appealability.

IT IS ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: February 25, 2011

The undersigned certifies that a copy of this

document was served on the attorneys of record

by electronic means or U.S. Mail on February 25,

2011.

s/Carol A. Pinegar 

Deputy Clerk

2:08-cv-13968-VAR-VMM Doc # 8 Filed 02/25/11 Pg 22 of 22 Pg ID 3295