UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TODD REDINGER,

Petitioner, Case Number 09-11210

Honorable David M. Lawson

v.

SHIRLEE HARRY,

Respondent.

________________________________________/

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

Petitioner Todd Redinger is in the custody of the Michigan Department of Corrections

following his convictions for first- and third-degree child abuse. Mich. Comp. Laws 750.136b(2),

(5). He alleges in a petition for a writ of habeas corpus under 28 U.S.C. § 2254 that his convictions

and prison sentences totaling ten to fifteen years are unconstitutional because:(1) he was deprived

of his right to present a defense when the trial court refused to authorize sufficient funds to allow

him to obtain an expert witness on the cause of the child’s injuries; (2) the prosecutor’s closing

argument improperly shifted the burden of proof; (3) there was insufficient evidence to support his

convictions; and (4) the Michigan sentencing court abused its discretion when it departed upward

from the statutory sentencing guidelines. The respondent filed an answer to the petition arguing that

the petitioner’s claims are either non-cognizable or meritless. The Court finds that none of the

petitioner’s claims have merit. The Court therefore will deny the petition.

I.

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The petitioner was charged with child abuse when his three-month-old son, “E.R.,” was

discovered with a skull fracture, subdural hematoma, retinal hemorrhaging, and bruising. The

petitioner admitted to police that he punched the infant in the side of his head. He also was charged

with abusing his two-year-old, who was found with a large bruise across his buttock. The state court

of appeals summarized the facts of the case as follows:

In 2004, defendant was living with his then fiancee, Janet Austill, and Austill’s two

children, J.R. and Jb.R. Defendant and Austill’s son, E.R., was born on December

14, 2004. E.R. was hospitalized for kidney treatment and surgery to repair a hernia

on January 10, 2005. On February 16, 2005, defendant woke Austill to tell her that

E.R. was not breathing. Austill called 911. E.R. was transferred to the hospital

where he was diagnosed with retinal bleeding and subdural hematoma, but he did not

present any external signs of trauma such as bruising. A few days later, x-rays

revealed that he had a complex skull fracture. Meanwhile, defendant’s neighbor,

Stacy Cresswell, babysat J.R. and Jb.R. while defendant and Austill went to the

hospital with E.R. When she changed Jb.R.’s diaper, she observed a large bruise on

his right buttock. Creswell reported the bruise to the police.

Defendant admitted to the police that he spanked J.R. and Jb.R. with a hunting arrow,

which might have left marks on their buttocks. Defendant gave varying explanations

for what happened before E.R. stopped breathing. He stated that E.R. accidentally

hit his head on a kitchen cabinet and fell to the floor while defendant was swinging

him into the air to stop his crying. Defendant also admitted that he punched E.R. in

the head with his fist. Additionally, defendant explained that he accidentally closed

E.R.’s head in a recliner footrest when he stood up while E.R. was on the floor.

Defendant initially said the footrest incident happened on the same day that E.R.

stopped breathing, but later said that it happened several days before.

The prosecution’s expert witness, Mary Smyth, M.D., opined that E.R.’s injuries

were not accidental, because a two-month-old child is unable to ambulate or put

himself into a position where he could sustain this type of injury. She also testified

that E.R.’s skull fracture was not consistent with simply falling and striking his head

on a hard surface, because the fracture pattern was complex, not linear. When asked

whether the fracture was consistent with a punch to the head, she replied that

forceful, repetitive punching might have caused it. Dr. Smyth testified that the

combination of retinal hemorrhage, subdural hematoma, and skull fracture was

indicative of a major traumatic event, which is usually attributable to abuse unless

there is a history of a major traumatic event that could have caused the injuries. She

stated that it is not unusual for a child to sustain a retinal hemorrhage in only one eye

after experiencing abuse that also causes a skull fracture and subdural hematoma.

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Hospital personnel did not observe any indication of a head injury during E.R.’s

previous hospitalization, and Dr. Smyth stated that medical testing ruled out the

possibility that any of these preexisting problems contributed to E.R.’s head injury.

Dr. Smyth also testified that while testing for genetic abnormalities was not

complete, there was no genetic disorder that could result in a spontaneous skull

fracture, subdural hematoma, and retinal hemorrhage. She also ruled out the

possibility that E.R.’s injury was related to a fall during his mother’s pregnancy.

Rather, E.R.’s symptoms were indicative of an acute event that happened shortly

before EMS was called. Dr. Smyth acknowledged that E.R. did not immediately

display external signs of injury such as bruising, but averred that a child might suffer

internal brain and eye injuries without presenting external signs. She also stated that

it is difficult to observe bruises on a child’s scalp.

People v. Redinger, No. 269139, 2007 WL 2377341, at *1-2 (Mich. Ct. App. Aug. 21, 2007). 

The petitioner’s convictions were affirmed on direct appeal, ibid., and his application for

leave to appeal was denied by the Michigan Supreme Court, People v. Redinger, 480 Mich. 1011,

743 N.W.2d 35 (2008). 

The petition for habeas corpus raises the following issues:

I. The lower court[’s] refusal to authorize payment for a defense expert witness

violated [the petitioner’s] constitutional right to present a defense.

II. The prosecutor’s closing argument violated [the petitioner’s] right to a fair

trial.

III. The evidence presented in the jury trial failed to [prove] guilt beyond a

reasonable doubt.

IV. The court failed to establish [a] substantial and compelling reason for the

departure above the sentence guidelines.

Pet. at 6-10. The attorney general filed a non-conforming response for the respondent, which

violated Federal Rule of Civil Procedure 5.2(a)(3) (forbidding a party from filing a paper referring

to a minor other than by “the minor’s initials”). Therefore, the response will be stricken, and the

Court will assess the merits of the case based on the petition alone.

II.

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The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.

L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), which govern this case, “circumscribe[d]” the

standard of review federal courts must apply when considering an application for a writ of habeas

corpus raising constitutional claims, including claims of ineffective assistance of counsel. See

Wiggins v. Smith, 539 U.S. 510, 520 (2003). As amended, 28 U.S.C. § 2254(d) permits a federal

court to issue the writ only if the state court decision on a federal issue “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by the Supreme

Court,” or it amounted to “an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2); Franklin v. Francis, 144 F.3d

429, 433 (6th Cir. 1998). Under that review standard, mere error by the state court does not justify

issuance of the writ; rather, the state court’s application of federal law “must have been objectively

unreasonable.” Wiggins, 539 U.S. at 520-21 (quoting Williams v. Taylor, 529 U.S. 362, 409 (2000)

(internal quotes omitted)). Additionally, this Court must presume the correctness of state court

factual determinations. 28 U.S.C. § 2254(e)(1) (“In a proceeding instituted by an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a

determination of a factual issue made by a State court shall be presumed to be correct.”); see also

West v. Seabold, 73 F.3d 81, 84 (6th Cir. 1996) (stating that “[t]he court gives complete deference

to state court findings of historical fact unless they are clearly erroneous”).

The Supreme Court has explained the proper application of the “contrary to” clause as

follows:

A state-court decision will certainly be contrary to [the Supreme Court’s] clearly

established precedent if the state court applies a rule that contradicts the governing

law set forth in our cases. . . .

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A state-court decision will also be contrary to this Court’s clearly established

precedent if the state court confronts a set of facts that are materially

indistinguishable from a decision of this Court and nevertheless arrives at a result

different from [the Court’s] precedent.

Williams, 529 U.S. at 405-06. 

The Supreme Court has held that a federal court should analyze a claim for habeas corpus

relief under the “unreasonable application” clause of § 2254(d)(1) “when a state-court decision

unreasonably applies the law of this Court to the facts of a prisoner’s case.” Id. at 409. The Court

has explained that an unreasonable application of federal law is different from an incorrect

application of federal law. Under that language, “a federal habeas court may grant the writ if the

state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413.

The Supreme Court has continued to emphasize the limited nature of this review. In its unanimous

decision two terms ago in Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770 (2011), the Court

reiterated that the AEDPA requires federal habeas courts to review state court decisions with

“deference and latitude,” and “[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.” Id. at 785-86 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). The

Sixth Circuit observed recently that “[t]his is a very high standard, which the [Supreme] Court freely

acknowledges.” Peak v. Webb, 673 F.3d 465, 472 (6th Cir. 2012). The Peak court suggested that

Richter holds that the review standard “is even more constricted than AEDPA’s plain language

already suggests.” Ibid.

The distinction between mere error and an objectively unreasonable application of Supreme

Court precedent creates a substantially higher threshold for obtaining relief than de novo review.

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The 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) (finding that the state court’s rapid declaration of a mistrial on

grounds of jury deadlock was not unreasonable even where “the jury only deliberated for four hours,

its notes were arguably ambiguous, the trial judge’s initial question to the foreperson was imprecise,

and the judge neither asked for elaboration of the foreperson’s answers nor took any other measures

to confirm the foreperson’s prediction that a unanimous verdict would not be reached” (internal

quotation marks and citations omitted)); see also Peak, 673 F.3d at 473-74; Bray v. Andrews, 640

F.3d 731, 737-39 (6th Cir. 2011); Phillips v. Bradshaw, 607 F.3d 199, 205 (6th Cir. 2010); Murphy

v. Ohio, 551 F.3d 485, 493-94 (6th Cir. 2009); Eady v. Morgan, 515 F.3d 587, 594-95 (6th Cir.

2008); Davis v. Coyle, 475 F.3d 761, 766-67 (6th Cir. 2007); King v. Bobby, 433 F.3d 483, 489 (6th

Cir. 2006); Rockwell v. Yukins, 341 F.3d 507, 511 (6th Cir. 2003) (en banc). Moreover, habeas

review is “limited to the record that was before the state court.” Cullen v. Pinholster, --- U.S. ---,

131 S. Ct. 1388, 1398 (2011). 

A.

The petitioner’s first claim asserts that the trial court violated his right to present a defense

when it denied his request for funds to hire an expert witness. Before trial, defense counsel

requested funds to hire an expert witness, Dr. Ronald Uscinski, to offer testimony on the source of

E.R.’s injuries. Dr. Uscinski’s fees were $3,000 to testify by telephone, and $10,000 for live

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testimony. Dr. Uscinski had already testified at a related neglect and abuse proceeding brought

against the petitioner in probate court. During that proceeding, he testified that the subdural

hematoma contained old blood, and therefore it occurred weeks or months prior to the alleged

incident of abuse. He also testified that a skull fracture and hematoma could have occurred during

birth, but there was not enough information available to determine how E.R.’s skull fracture

occurred.

The trial court ruled that it would sign an order appointing a medical expert to review the

cause of the injuries at the “normal” rate, but it would not pay the “exorbitant” fee requested by Dr.

Uscinski. Trial counsel was unable to find another expert witness to testify at the lower rate, and

he did not present an expert witness at trial.

The Michigan Court of Appeals found that the trial court properly denied the petitioner’s

request for expert assistance:

Defendant first argues that the trial court denied him the opportunity to present a

defense by refusing to authorize payment of an expert witness fee in excess of the

court’s standard rate. We disagree.

Michigan Compiled Laws 775.15 authorizes payment of fees for an expert witness

for an indigent defendant where the defendant demonstrates that the expert’s

testimony is necessary to enable him to safely proceed to trial. People v. Jacobsen,

448 Mich. 639, 641; 532 N.W.2d 838 (1995). Although the witness “shall be paid

. . . in the same manner as if such witness or witnesses had been subpoenaed in

behalf of the people,” the trial court may approve additional fees. The trial court’s

decision whether to do so is reviewed for an abuse of discretion. In re Attorney Fees

of Klevorn, 185 Mich. App. 672, 678; 463 N.W.2d 175 (1990).

Before trial, defendant moved for appointment of an expert medical witness with

regard to the cause of E.R.’s injuries. The trial court agreed to appoint an expert at

the court’s standard rate for experts. Defendant requested that the court approve

additional fees to enable Dr. Ronald Uscinski, an expert in pediatric neurology, to

testify at trial. Dr. Uscinski had testified for defendant in an earlier child protective

proceeding. Although Dr. Uscinski’s standard fee for giving testimony was $10,000,

he agreed to accept $3,000 to testify by telephone in the child protective proceeding.

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In defendant’s criminal case, defendant requested that the court similarly allow Dr.

Uscinski to testify by telephone and approve his $3,000 fee. The prosecutor advised

the trial court that her expert, Dr. Smyth, would receive the standard expert witness

fee of $200. The prosecutor also objected to the proposed procedure of testifying by

telephone. The trial court did not address the propriety of testimony by telephone,

but the trial court denied Dr. Uscinski’s requested fees, finding them excessive and

unreasonable, but stated that it was willing to appoint another expert at the court’s

standard rate. Defendant did not request appointment of another expert and did not

present expert testimony at trial.

Although defendant preferred Dr. Uscinski, referring to him as “one of the nation’s

leading experts,” due process protections do not guarantee indigent defendants all the

assistance that wealthier defendants might buy. People v. Leonard, 224 Mich. App.

569, 580-581; 569 N.W.2d 663 (1997). Further, an indigent defendant’s right to

appointment of an expert does not entitle him to appointment of a particular expert

who will reach conclusions that satisfy the defendant but only an expert who is

competent in his field. People v. Stone, 195 Mich. App. 600, 606; 491 N.W.2d 628

(1992). Defendant has not at any point shown that there were no other competent

medical experts who could testify regarding the cause of E.R.’s injuries. Defendant

relies on People v. McPeters, 181 Mich. App. 145; 448 N.W.2d 770 (1989), where

the trial court refused to approve an expert’s fees above the standard rate, and it

became apparent during the expert’s testimony that he was refusing to cooperate

without payment of his requested fee. The trial court erred by refusing either to

approve a greater fee or to appoint a different expert. Id. at 149-152. In contrast, the

trial court here did offer to appoint another expert.

Under the circumstances, the trial court did not abuse its discretion in refusing to

approve Dr. Uscinski’s requested expert witness fees. Further, because the trial court

offered to appoint another expert witness for defendant, it did not deny him the

opportunity to present a defense.

Peoiple v. Redinger, 2007 WL 2377341, at *2-3 (footnote omitted).

The controlling constitutional authority appears to be Ake v. Oklahoma, 470 U.S. 68, 77

(1985), where the Supreme Court recognized a criminal defendant’s limited right to the assistance

of an expert witness in a case in which the defendant raised an insanity defense:

We . . . hold that when a defendant demonstrates to the trial judge that his sanity at

the time of the offense is to be a significant factor at trial, the State must, at a

minimum, assure the defendant access to a competent psychiatrist who will conduct

an appropriate examination and assist in evaluation, preparation, and presentation of

the defense.

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Id. at 83. The Supreme Court did not discuss a defendant’s entitlement to a court-appointed expert

outside the context of an insanity defense. Since its decision in Ake, the Supreme Court has not

taken the opportunity to “determine as a matter of federal constitutional law what if any showing

would have entitled a defendant to assistance of other types of experts.” Caldwell v. Mississippi,

472 U.S. 320, 323 n.1 (1985).

There is disagreement among the circuits over whether Ake requires the provision of expert

services beyond psychiatric services necessary to present an insanity defense, and the Sixth Circuit

has not taken a definitive position on the question. Babick v. Berghuis, 620 F.3d 571, 579 (6th Cir.

2010) (noting disagreement among courts of appeals); Tinsley v. Million, 399 F.3d 796, 807 (6th Cir.

2005) (questioning a defendant’s entitlement to a blood-spatter expert); Terry v. Rees, 985 F.2d 283,

284 (6th Cir. 1993) (stating that the petitioner was denied the opportunity to present an effective

defense by failure to appoint an independent pathologist).

Regardless of the circuit split, and even the conflict in the circuit, it is plain that there is no

controlling Supreme Court precedent on this issue. Without that, the petitioner cannot show a

constitutional violation that would entitled him to habeas relief. 28 U.S.C. § 2254(d)(1) (allowing

a writ of habeas corpus to issue to a state prisoner if the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined by the

Supreme Court” (emphasis added)). See Williams, 529 U.S. at 380 (opinion of Stevens, J.)

(indicating that “AEDPA codifies Teague [v. Lane, 489 U.S. 288 (1989)] to the extent that Teague

requires federal habeas courts to deny relief that is contingent upon a rule of law not clearly

established at the time the state conviction became final”).; 

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If there is such a rule that extends beyond insanity experts, the trial court did not violate it

here. The court was willing to appoint a medical expert that would have put the petitioner on equal

footing with the prosecution. That is all that the Sixth Amendment requires. Just as the

constitutional right to counsel does not translate into a defendant’s right to counsel of his choice,

United States v. Coles, 695 F.3d 559, 562 (6th Cir. 2012), neither can it be said that the right to

technical assistance implies a power of selection.

The petitioner has not shown that the state courts’ decisions misapplied clearly established

Supreme Court precedent. He is not entitled to a writ of habeas corpus on this claim.

B.

The petitioner next asserts that the prosecutor committed misconduct during closing

arguments when he stated that the petitioner failed to offer an innocent medical explanation for the

complainant’s injuries, thereby shifting the burden of proof. The Michigan Court of Appeals

rejected this claim on the ground that the remarks amounted to a fair comment on the evidence,

especially Dr. Smyth’s testimony. 

“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)). Prosecutorial misconduct will form the basis for habeas relief only if the conduct

was so egregious that it rendered the entire trial fundamentally unfair based on the totality of the

circumstances. Caldwell v. Russell, 181 F.3d 731, 736 (6th Cir. 1999) (stating that “[p]rosecutorial

misconduct may warrant habeas relief only if the relevant misstatements were so egregious as to

render the entire trial fundamentally unfair to a degree tantamount to a due process deprivation”),

abrogated on other grounds by Mackey v. Dutton, 217 F.3d 399, 406 (6th Cir. 2000). 

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The determination whether the trial was fundamentally unfair is “made by evaluating the

totality of the circumstances surrounding each individual case.” Angel v. Overberg, 682 F.2d 605,

608 (6th Cir. 1982) (citing Hayton v. Egeler, 555 F.2d 599, 604 (6th Cir. 1977)). The Court focuses

on “‘the fairness of the trial, not the culpability of the prosecutor.’” Pritchett v. Pitcher, 117 F.3d

959, 964 (6th Cir. 1997) (quoting Serra v. Michigan Dep’t of Corr., 4 F.3d 1348, 1355 (6th Cir.

1993)). “The Supreme Court has clearly indicated that the state courts have substantial breathing

room when considering prosecutorial misconduct claims because ‘constitutional line drawing [in

prosecutorial misconduct cases] is necessarily imprecise.’” Slagle, 457 F.3d at 516 (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 645 (1974)).

The Michigan Court of Appeals rejected the petitioner’s claim of prosecutorial misconduct

as follows:

Defendant argues that it was improper for the prosecutor to argue that no medical

condition could explain E.R.’s constellation of injuries, because the prosecutor knew

that Dr. Uscinski could have rebutted Dr. Smyth’s testimony, and because the

argument also invited the jury to convict defendant for failing to present evidence,

thus shifting the burden of proof. However, the prosecutor’s remarks were

supported by the evidence that no preexisting conditions contributed to the injuries,

no genetic disorder could account for the injuries, a fall during E.R.’s mother’s

pregnancy would not cause the injuries, and the injuries were indicative of an acute

event that occurred shortly before E.R. was hospitalized. The prosecutor did not

comment on defendant’s failure to present evidence or imply that defendant was

required to prove or explain anything. Viewed in context, the prosecutor

permissibly argued that inculpatory evidence was undisputed. Defendant’s inability

to present Dr. Uscinski did not preclude him from presenting expert testimony with

which to rebut Dr. Smyth’s testimony. The fact that defendant did not do so does not

mean that the prosecutor’s statement that there was no medical explanation for E.R.’s

injuries was unsupported by the evidence.

People v. Redinger, 2007 WL 2377341, at *3 (citations omitted).

The court’s holding was not an unreasonable application of Supreme Court precedent.

Although the prosecutor may not argue or imply that the burden of persuasion falls to a defendant

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to prove his innocence, United States v. Clark, 982 F.2d 965, 968-69 (6th Cir. 1993), she is entitled

to point out the lack of evidence supporting defense theories, United States v. Forrest, 402 F.3d 678,

686 (6th Cir. 2005). Pointing out the defense’s failure to produce evidence to contradict or call into

question the prosecution evidence does not amount to an attempt by the prosecutor to shift the

burden of proof. United States v. Kuehne, 547 F.3d 667, 690 (6th Cir. 2008) (holding that “‘a

prosecutor is entitled to comment on a defendant’s failure to call witnesses to contradict the

government’s case’ so long as the prosecutor ‘avoid[s] commenting in such a manner that treads on

the defendant’s constitutional rights and privileges’” (quoting United States v. Clark, 982 F.2d 965,

968 (6th Cir. 1993))). Here, the prosecutor accurately commented that there was no evidence that

provided an innocent medical explanation for the injuries suffered by the petitioner’s young son.

This statement was an accurate description of the evidence presented at trial. Moreover, the trial

judge instructed the jury that the petitioner was presumed innocent and that the prosecutor had the

burden of proving petitioner’s guilt beyond a reasonable doubt, which militated against any

improper inference that might have been taken from the State’s argument. See Scott v. Elo, 302 F.3d

598, 603-04 (6th Cir. 2002).

C.

The petitioner’s third claim is that the evidence was not sufficient to sustain his two

convictions for child abuse. “[T]he Due Process Clause protects the accused against conviction

except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with

which he is charged.” In re Winship, 397 U.S. 358, 364 (1970). The critical inquiry on habeas

review of the sufficiency of the evidence to support a criminal conviction is 

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whether the record evidence could reasonably support a finding of guilt beyond a

reasonable doubt. But this inquiry does not require a court to “ask itself whether it

believes that the evidence at the trial established guilt beyond a reasonable doubt.”

Instead, the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (citations and footnote omitted). A federal court

may not reweigh the evidence or redetermine the credibility of the witnesses. Marshall v.

Lonberger, 459 U.S. 422, 434 (1983). “It is the province of the factfinder to weigh the probative

value of the evidence and resolve any conflicts in testimony.” Matthews v. Abramajtys, 319 F.3d

780, 788 (6th Cir. 2003) (citing Neal v. Morris, 972 F.2d 675, 679 (6th Cir. 1992)). A habeas court

must defer to the fact finder for its assessment of the credibility of witnesses. Ibid. (citing Gall v.

Parker, 231 F.3d 265, 286 (6th Cir. 2000)). The Court need not be convinced that the petitioner is

actually guilty beyond a reasonable doubt, provided there is sufficient evidence in the record to

support the jury’s verdict. Walker v. Russell, 57 F.3d 472, 475 (6th Cir. 1995).

The sufficiency of evidence “standard must be applied with explicit reference to the

substantive elements of the criminal offense as defined by state law,” Jackson, 443 U.S. at 324 n.16,

and through the framework of 28 U.S.C. § 2254(d), Martin v. Mitchell, 280 F.3d 594, 617 (6th Cir.

2002).

Applying the Jackson standards, the Michigan Court of Appeals rejected the petitioner's

insufficiency of evidence arguments as follows:

First-degree child abuse entails “knowingly or intentionally caus[ing] serious

physical or serious mental harm to a child.” Mich. Comp. Laws 750.136b(2).

Third-degree child abuse entails “knowingly or intentionally caus[ing] physical harm

to a child.” Mich. Comp. Laws 750.136b(5). “Physical harm” is “any injury to a

child’s physical condition,” and “serious physical harm” is “any physical injury to

a child that seriously impairs the child’s health or physical well-being, including, but

not limited to, brain damage, a skull or bone fracture, subdural hemorrhage or

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hematoma, dislocation, sprain, internal injury, poisoning, burn or scald, or severe

cut.” Mich. Comp. Laws 750.136b(1)(e)-(f). The child abuse statute should not be

construed to prohibit a parent from reasonably disciplining a child, including the

reasonable use of force.

Defendant argues that there was insufficient evidence that E.R.’s injuries were

caused by defendant’s conduct. However, defendant admitted that he punched E.R.

in the head with his fist, and Dr. Smyth testified that E.R.’s injuries indicated

physical abuse and could be explained by repeated, forceful punching. Dr. Smyth

also ruled out other possibilities, such as birth trauma, accident, or an undiagnosed

genetic condition. Viewed in a light most favorable to the prosecution, the evidence

was sufficient to enable the jury to find that E.R. was seriously injured by

defendant’s knowing or intentional conduct. Likewise, considering the nature of the

injury to a three-month-old child, defendant's admission that he struck E.R. in the

head with a fist, and the evidence that E.R.’s head injury was consistent with having

been punched repeatedly and forcefully, the evidence supported an inference that

defendant acted with the knowledge or intent that serious injury would result.

Defendant also argues that there was insufficient evidence to convict him of

third-degree child abuse of J.R. because there was no evidence that the bruise left by

the arrow was painful. However, “physical harm” includes “any injury to a child’s

physical condition” and does not include an element of pain. Mich. Comp. Laws

750.136b(1)(e) (emphasis added). In any event, the jury could reasonably infer that

being struck with an arrow to a degree that it left a bruise would have been painful.

The jury could also reasonably find that using an arrow to spank a two-year-old

child did not constitute reasonable discipline or reasonable force. Thus, there was

sufficient evidence to support defendant’s conviction of third-degree child abuse.

People v. Redinger, 2007 WL 2377341, at *5 (citations omitted).

Not much more needs be said on the point. It is painfully apparent that the record contains

abundant evidence that proves beyond a reasonable doubt the petitioner’s guilt of both first- and

third-degree child abuse. The court applied the correct legal standard in addressing the question of

sufficiency of the evidence with reference to the elements of the crimes. Evidence was presented

from which a reasonable jury could find all the elements of first and third-degree child abuse.

Therefore, the petitioner is not entitled to habeas relief on this claim.

D.

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The petitioner’s last claim asserts that the trial court failed to articulate adequate reasons for

imposing a sentence in excess of Michigan’s sentencing guidelines. However, that claim does not

present a federal question.

The petitioner’s sentences of ten-to-fifteen and one-to-two years were within Michigan’s

statutory limits. A sentence imposed within the statutory limits is not generally subject to habeas

review. Townsend v. Burke, 334 U.S. 736, 741 (1948); Cook v. Stegall, 56 F. Supp. 2d 788, 797

(E.D. Mich. 1999). 

The petitioner’s contention “that the trial court erred in applying the state sentencing

guidelines raises an issue of state law only. It does not implicate any federal rights.”

Garcia–Dorantes v. Warren, 769 F. Supp. 2d 1092, 1112 (E.D. Mich. 2011). “‘[F]ederal habeas

corpus relief does not lie for errors of state law.’” Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). Therefore, a claim that the trial court

incorrectly applied the state sentencing guidelines simply is not cognizable on federal habeas corpus

review. Austin v. Jackson, 213 F.3d 298, 300 (6th Cir. 2000); McPhail v. Renico, 412 F. Supp. 2d

647, 656 (E.D. Mich. 2006); see also Koras v. Robinson, 123 F. App’x 207, 214 (6th Cir. 2005)

(state trial judge’s alleged failure to articulate the reasons for enhancing habeas petitioner’s

sentence, in violation of Michigan Court Rule 6.425 and Michigan case law, did not present a basis

for federal habeas corpus relief). 

III.

The respondent’s response violates Federal Rule of Civil Procedure 5.2(a)(3) and will be

stricken. Nonetheless, the petitioner has not established that he is presently in custody in violation

of the Constitution or laws of the United States.

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Accordingly, it is ORDERED that the petition for a writ of habeas corpus is DENIED.

It is further ORDERED that the response to the petition [dkt. #6] is STRICKEN, and the

Clerk is instructed to remove the image from the docket. 

s/David M. Lawson 

DAVID M. LAWSON

United States District Judge

Dated: February 22, 2013

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on February 22, 2013.

s/Deborah R. Tofil 

DEBORAH R. TOFIL

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