1

 To protect the privacy of the minor victims, they and their family members will be

referred to by first name and first initial of their last names. 

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARYL DOUGLAS JUSTICE,

Petitioner,

v.

BLAINE LAFLER,

Respondent. 

/

Case Number: 2:09-cv-13264

HONORABLE MARIANNE O. BATTANI

OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS

CORPUS AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Daryl Douglas Justice filed a pro se petition for a writ of habeas corpus

under 28 U.S.C. § 2254. Petitioner is a state prisoner in the custody of the Michigan

Department of Corrections pursuant to convictions for first-degree criminal sexual

conduct and second-degree criminal sexual conduct. He raises ten grounds for habeas

relief. Respondent argues that the claims are meritless and/or procedurally defaulted. 

The Court denies the petition. 

I. Facts

Petitioner’s convictions arise from the sexual assaults of 11-year-old Jessica M.1

and 6-year-old Kayla K., on June 29, 2002. Jessica M. testified that Petitioner was her

father’s boss. He invited her parents to go to his home in northern Michigan with him. 

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Her parents, Eve and Eric, agreed to go. Jessica, her parents, and three siblings drove up

to Petitioner’s home in Kings Township on June 29, 2002. They drove to Petitioner’s

home with Jessica’s aunt and uncle, Stacey and Frank K, and their children, Jacob, Kayla,

and Eric. Originally, she was placed in a bedroom where all of the children were

sleeping. At some point, Petitioner changed the sleeping arrangements because the

children were too noisy. He placed Jessica in his room, on the floor by his bed. Jessica

testified that at some point during the night she woke up because something was hurting

her in her “privates.” Petitioner had put his hand in her pants and was moving his fingers

back and forth inside her. After he stopped, she left his room. She eventually told her

cousin Jacob what happened. Jacob told Jessica’s parents what happened. Both families

left the home and called police from a pay phone. Jessica and Kayla were taken to a

hospital.

Jacob K. testified that his mother and step-father were employed by Petitioner at

Eagle Plumbing. He, his parents, and his two sisters, Emily and Kayla were invited to

Petitioner’s home up north in June 2002. The first night there, Jacob was sleeping beside

his sister Kayla. He woke to find Petitioner with his hand down Kayla’s pants. When

Jacob asked whether that was Petitioner beside Kayla, Petitioner ran back to his own

room. Jacob testified that he was later awakened by Jessica, who told him that Petitioner

had raped her. Despite Jessica’s protests, Jacob told Jessica’s parents, who then told his

own parents. Both families then left the home. 

Petitioner testified in his own defense. He denied inappropriately touching Jessica

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or Kayla. He testified that at one point during the evening of June 29, 2002, he entered

the room where the children were sleeping and saw Jacob with his hand down Jessica’s

pants. He moved Jessica into the top bunk. He was later awakened by noise from the

room where the children were sleeping. He testified that when he entered the children’s

room he saw Jessica seated beside Jacob. He moved Jessica into the hallway. Petitioner

woke a third time to find Jessica beside his bed. Her leg was banging against his arm,

which was dangling off the edge of the bed. He sent Jessica downstairs to sleep on the

courch. After sending Jessica downstairs, Petitioner went into the children’s bedroom. 

He saw a hand sticking out from one of the beds. Petitioner grabbed the hand. Jacob then

said, “You’re scaring me.” Petitioner reassured Jacob it was only him and tucked the

covers around Jacob and Kayla. 

II. Procedural History

Petitioner was convicted by a jury in Alcona County Circuit Court of one count

each of first- and second-degree criminal sexual conduct. He was sentenced to twenty to

forty years in prison for the first-degree conviction and eight to fifteen years in prison for

the second-degree conviction. 

Petitioner filed an appeal of right in the Michigan Court of Appeals. He raised

these claims: (i) other act evidence improperly admitted; (ii) right to present a defense

denied; (iii) ineffective assistance of trial counsel; and (iv) trial court improperly found

substantial and compelling reasons for departing from sentencing guidelines. The

Michigan Court of Appeals affirmed the convictions, but remanded for resentencing

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because the trial court failed to articulate a substantial and compelling reason for

departing from the sentencing guidelines. People v. Justice, No. 249429, 2004 WL

2387660 (Mich. Ct. App. Oct. 26, 2004). Petitioner filed an application for leave to

appeal in the Michigan Supreme Court. He raised the same claims raised in the Michigan

Court of Appeals, except that he did not raise the sentencing-related claim. The Michigan

Supreme Court denied leave to appeal. People v. Justice, 472 Mich. 940 (2005).

On remand, Petitioner was resentenced to 18 years, 9 months to 40 years in prison

for the first-degree criminal sexual conduct conviction and 8 to 15 years in prison for the

second-degree criminal sexual conduct conviction. 

Petitioner appealed his resentencing to the Michigan Court of Appeals, arguing

that they violated Blakely v. Washington, 542 U.S. 296 (2004) and Apprendi v. New

Jersey, 530 U.S. 466 (2000). The Michigan Court of Appeals affirmed the sentences. 

People v. Justice, No. 260141, 2006 WL 1008994 (Mich. Ct. App. Apr. 18, 2006). The

Michigan Supreme Court denied Petitioner’s application for leave to appeal. People v.

Justice, 476 Mich. 868 (Aug. 29, 2006). 

Petitioner filed a motion for relief from judgment in the trial court. He raised these

claims: (i) fair trial denied by trial court’s refusal to permit defense witnesses to testify;

(ii) prosecutor improperly vouched for complainant’s credibility; (iii) insufficient

evidence; (iv) extrinsic evidence influenced jury; (v) ineffective assistance of trial

counsel; and (vi) ineffective assistance of appellate counsel. The trial court denied the

motion. The Michigan Court of Appeals denied leave to appeal. People v. Justice, No.

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287709 (Mich. Ct. App. Jan. 5, 2009). The Michigan Supreme Court also denied leave to

appeal. People v. Justice, 484 Mich. 867 (Mich. Aug. 6, 2009). 

Petitioner then filed the pending habeas corpus petition. He raises these claims:

I. Petitioner was denied his due process right to a fair trial where he was on

trial for criminal sexual conduct and the prosecutor elicited other acts

evidence.

II. Petitioner was deprived of the right to present a defense when the trial court

precluded him from presenting evidence of bias and motive for fabrication.

III. Petitioner was denied the effective assistance of counsel at trial.

IV. Petitioner is entitled to resentencing because the statutory sentencing

guidelines were scored as to offense variables 4, 8, 10, and 13 in violation

of the Sixth and Fourteenth Amendments.

V. Petitioner was denied a fair trial by the trial court's refusal to permit a

defense witness from testifying at trial.

VI. The prosecutor improperly vouched for the credibility of the complaining

witness, denying defendant the right to a fair trial.

VII. The evidence was insufficient to support a guilty verdict of second-degree

criminal sexual conduct.

VIII. Petitioner was denied a fair trial as a result of extrinsic influences upon the

jury.

IX. Petitioner was denied a fair trial by ineffective assistance of counsel on

presenting a defense.

X. Petitioner was denied due process by ineffective assistance of counsel on

appeal.

III. Standard of Review

28 U.S.C. § 2254(d) provides:

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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 proceedings. 

28 U.S.C. § 2254(d). 

“A state court’s decision is ‘contrary to’ . . . clearly established law if it ‘applies a

rule that contradicts the governing law set forth in [Supreme Court cases]’ or if it

‘confronts a set of facts that are materially indistinguishable from a decision of [the

Supreme] Court and nevertheless arrives at a result different from [this] precedent.’” 

Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (per curiam) (quoting Williams v. Taylor,

529 U.S. 362, 405-06 (2000)). “[T]he ‘unreasonable application’ prong of the statute

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). However, “[i]n order for a federal court find a state

court’s application of [Supreme Court] precedent ‘unreasonable,’ the state court’s

decision must have been more than incorrect or erroneous. The state court’s application

must have been ‘objectively unreasonable.’” Wiggins, 539 U.S. at 520-21 (citations

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omitted); see also Williams, 529 U.S. at 409. “A state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’

on the correctness of the state court’s decision.” Harrington v. Richter, __ U.S. __, 131

S. Ct. 770, 789 (2011), quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). 

“Section 2254(d) reflects the view that habeas corpus is a guard against extreme

malfunctions in the state criminal justice systems, not a substitute for ordinary error

correction through appeal. . . . As a condition for obtaining habeas corpus from a federal

court, a state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” Id.

at 786-87 (internal quotation omitted). 

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. Section 2254(d) “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). “[W]hile the principles of “clearly established

law” are to be determined solely by resort to Supreme Court rulings, the decisions of

lower federal courts may be instructive in assessing the reasonableness of a state court’s

resolution of an issue.” Stewart v. Erwin, 503 F.3d 488, 493 (6th Cir. 2007), citing

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Williams v. Bowersox, 340 F.3d 667, 671 (8th Cir. 2003); Dickens v. Jones, 203 F. Supp.

2d 354, 359 (E.D. Mich. 2002).

Lastly, a federal habeas court must presume the correctness of state court factual

determinations. See 28 U.S.C. § 2254(e)(1). A petitioner may rebut this presumption

only with clear and convincing evidence. Warren v. Smith, 161 F.3d 358, 360-61 (6th

Cir. 1998). 

IV. Discussion

A. Procedural Default

Respondent argues that Petitioner’s fifth through tenth claims are procedurally

defaulted. Federal habeas relief is precluded on claims that a petitioner has not presented

to the state courts in accordance with the state’s procedural rules. See Wainwright v.

Sykes, 433 U.S. 72, 85-87 (1977). The doctrine of procedural default is applicable when a

petitioner fails to comply with a state procedural rule, the rule is actually relied upon by

the state courts, and the procedural rule is “adequate and independent.” White v. Mitchell,

431 F.3d 517, 524 (6th Cir. 2006); see also Howard v. Bouchard, 405 F.3d 459, 477 (6th

Cir. 2005); Coleman v. Mitchell, 244 F.3d 533, 539 (6th Cir. 2001). The last explained

state court judgment should be used to make this determination. See Ylst v. Nunnemaker,

501 U.S. 797, 803-05 (1991). If the last state judgment is a silent or unexplained denial,

it is presumed that the last reviewing court relied upon the last reasoned opinion. Id.

Petitioner’s claim of ineffective assistance of trial counsel was raised for the first

time on collateral review in state court. The Michigan Supreme Court denied relief

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pursuant to Michigan Court Rule 6.508(D), which provides, in part, that a court may not

grant relief to a defendant if the motion for relief from judgment alleges grounds for relief

which could have been raised on direct appeal, absent a showing of good cause for the

failure to raise such grounds previously and actual prejudice resulting therefrom. See

Mich. Ct. R. 6.508(D)(3). The United States Court of Appeals for the Sixth Circuit has

held that the form order used by the Michigan Supreme Court to deny leave to appeal in

this case is unexplained because its citation to Michigan Court Rule 6.508(D) is

ambiguous as to whether it refers to a procedural default or a rejection on the merits. See

Guilmette v. Howes, 624 F.3d 286, 291-92 (6th Cir. 2010) (en banc). Consequently,

under Guilmette, the Court must “look through” the unexplained order of the Michigan

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

state post-conviction relief.

The trial court rejected Petitioner’s claims pursuant to Michigan Court Rule

6.504(B)(2), which states that a court must deny a motion for relief from judgment

without further proceedings if it plainly appears from the face of the motion that the

movant is not entitled to relief. The trial court did not cite Rule 6.508 or any other

procedural bar when it denied the motion for relief from judgment. This Court therefore

presumes that the trial court adjudicated these claims on the merits. See Harrington v.

Richter, ––– U.S. ––––, ––––, 131 S.Ct. 770, 784–85 (2011) (stating that, “[w]hen a

federal claim has been presented to a state court and the state court has denied relief, it

may be presumed that the state court adjudicated the claim on the merits in the absence of

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any indication or state law procedural principles to the contrary”). The Court proceeds to

the merits of these claims.

B. Admission of Other Act Evidence

Petitioner argues that the trial court improperly admitted testimony from two

witnesses whose parents were formerly employed by Petitioner. Each witness testified

that, during the time period when their parents were employed by Petitioner, Petitioner

sexually assaulted them. Petitioner claims that the testimony was improperly admitted to

establish his propensity to commit crimes. The Michigan Court of Appeals held that the

testimony was properly admitted to show that Petitioner had a common scheme, system or

plan to befriend his employees and then sexually assault their children. In addition, the

court held that the charged and uncharged conduct were sufficiently similar to make the

testimony relevant. 

The United States Supreme Court has declined to hold that the admission of

similar “other acts” evidence is so extremely unfair that its admission violates

fundamental conceptions of justice. See Dowling v. United States, 493 U.S. 342, 352-53,

110 S. Ct. 668, 674-75 (1990). Although the Supreme Court has addressed whether prior

acts testimony is permissible under the Federal Rules of Evidence, see Huddleston v.

United States, 485 U.S. 681 (1988), it has not explicitly addressed the issue in

constitutional terms. “There is no clearly established Supreme Court precedent which

holds that a state violates due process by permitting propensity evidence in the form of

other bad acts evidence.” Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). 

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Consequently, there is no Supreme Court precedent that the state court decisions could be

deemed “contrary to” under 28 U.S.C. § 2254(d)(1). Id. at 513. Petitioner's challenge to

the admission of this evidence, therefore, does not warrant habeas relief. 

C. Right to Present a Defense

In his second and fifth claims, Petitioner argues that he was denied his right to

present a defense when the trial court precluded him from presenting evidence of bias and

motive for fabrication and would not allow him to present testimony from employees who

would testify that he did not molest their children. Specifically, Petitioner sought to

introduce evidence regarding Frank Liuzzo’s financial interest in Petitioner’s business

and his purported desire to destroy that business. Liuzzo is Kayla K.’s step-father and

Jessica M.’s uncle. Petitioner sought to show that Liuzzo had a motive to convince the

children to fabricate allegations against Petitioner because this would somehow allow

Liuzzo to keep equipment and checks that belonged to Petitioner’s business. 

The right of a defendant to present a defense has long been recognized as “a

fundamental element of due process of law.” Washington v. Texas, 388 U.S. 14, 19

(1967). It is one of the “minimum essentials of a fair trial.” Chambers v. Mississippi, 410

U.S. 284, 294 (1973). The Supreme Court has described the “most basic ingredients of

due process of law” as follows:

“A person’s right to reasonable notice of a charge against him, and an

opportunity to be heard in his defense -- a right to his day in court -- are

basic in our system of jurisprudence; and these rights include, as a

minimum, a right to examine the witnesses against him, to offer testimony,

and to be represented by counsel.”

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Washington, 388 U.S. at 18 (1967) (quoting In re Oliver, 333 U.S. 257 (1948)). 

Further, the Supreme Court described the right to present a defense as follows:

The right to offer testimony of witnesses, and to compel their attendance, if

necessary, is in plain terms the right to present a defense, the right to

present the defendant’s version of the facts as well as the prosecution’s to

the jury so it may decide where the truth lies. Just as an accused has the

right to confront the prosecution’s witnesses for the purpose of challenging

their testimony, he has the right to present his own witnesses to establish a

defense. This right is a fundamental element of due process of law.

Id. at 19.

This Court recognizes that, while the right to present a defense is a fundamental

tenet of due process, “a defendant’s right to present evidence is not unlimited, but rather

is subject to reasonable restrictions.” United States v. Scheffer, 523 U.S. 303, 308 (1998). 

Indeed, “[a] defendant’s interest in presenting . . . evidence may thus bow to

accommodate other legitimate interests in the criminal trial process.” Id. (internal

quotations omitted). However, the exclusion of evidence is unconstitutional where it

“infringe[s] upon a weighty interest of the accused.” Id., citing Rock v. Arkansas, 483

U.S. 44, 58 (1987). Because criminal defendants are guaranteed a “meaningful

opportunity to present a complete defense,” courts cannot exclude defense evidence under

evidentiary rules that “serve no legitimate purpose or that are disproportionate to the ends

that they are asserted to promote.” Holmes v. South Carolina, 547 U.S. 319, 325-26

(2006). 

In determining whether the exclusion of evidence infringes upon a weighty interest

of the accused, the question is whether the defendant was afforded “‘a meaningful

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opportunity to present a complete defense.’” Crane v. Kentucky, 476 U.S. 683, 690

(1986), quoting California v. Trombetta, 467 U.S. 479, 485 (1984). The prosecutor’s

case must “encounter and ‘survive the crucible of meaningful adversarial testing.’” Id. at

690-691 (1984), quoting United States v. Cronic, 466 U.S. 648, 656 (1984). But, the

Supreme Court has emphasized that “the Due Process Clause does not permit the federal

courts to engage in a finely tuned review of the wisdom of state evidentiary rules.”

Marshall v. Lonberger, 459 U.S. 422, 438 n. 6 (1983). 

In this case, the Michigan Court of Appeals held that the trial court correctly

excluded this evidence. The Michigan Court of Appeals held that the inference Petitioner

was trying to establish, that Liuzzo had a motive to fabricate testimony because he would

gain financially by Petitioner’s incarceration, was tenuous at best. Petitioner’s business

was defunct at the time of trial, and, the court held, much of the evidence Petitioner

argued was improperly excluded was, in fact, admitted at trial. Therefore, the Michigan

Court of Appeals held that the trial court did not abuse its discretion or deny Petitioner his

right to a fair trial.

Petitioner was permitted limited exploration of the subject by the trial court and,

only when it became evident that the relevance was marginal at best, was the crossexamination limited. Thus, the record shows that the Michigan Court of Appeals’

decision that Petitioner was not denied his right to present a defense was not contrary to

or an unreasonable application of Supreme Court precedent. 

Petitioner next argues that he was denied his right to present a defense when he

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was precluded from presenting witnesses who would testify that they were employed by

Petitioner and that their children were not molested by Petitioner. Petitioner argued that

this testimony would rebut the prosecution’s theory that he was a sexual predator who

preyed upon the children of employees. The trial court, although denying the claim,

provided no reasons for its denial. Where a state court decision lacks meaningful (or, for

that matter, any) discussion, a habeas court must determine what theories or arguments

supported or could have supported the decision. Harrington, 131 S. Ct. at 785. Then, the

habeas court “must ask whether it is possible fair-minded jurists could disagree that those

arguments or theories are consistent with” clearly established Supreme Court precedent. 

Id.

Petitioner was not accused of preying upon all of his employees’ children. 

Testimony that he did not prey upon certain employees’ children would not make the

allegations against him more or less believable. Thus, he was not denied his right to

present a defense by the exclusion of these witnesses. 

D. Ineffective Assistance of Trial Counsel

Petitioner argues that habeas relief should be granted because his constitutional

right to the effective assistance of counsel was violated. Specifically, he argues that

counsel was ineffective for: (1) failing to request a curative instruction after reference was

made to a polygraph examination; (2) failing to highlight alleged inconsistencies between

the testimony of Emily King and her mother; (3) failing to subpoena the physician who

examined the victims; and (4) failing to investigate and present an offer of proof

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regarding the Liuzzos’ alleged theft from his plumbing business. 

To establish that he received ineffective assistance of counsel, a petitioner must

show, first, that counsel’s performance was deficient and, second, that counsel’s deficient

performance prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687

(1984). A petitioner may show that counsel’s performance was deficient by establishing

that counsel’s performance was “outside the wide range of professionally competent

assistance.” Id. at 689. This “requires a showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Id. at

687. 

To satisfy the prejudice prong, a petitioner must show that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. at 694. A court’s review of counsel’s

performance must be “highly deferential.” Id. at 689. Habeas relief may be granted only

if the state-court decision unreasonably applied the standard for evaluating

ineffective-assistance-of-counsel claims established by Strickland. Knowles v.

Mirzayance, 556 U.S. 111, 122-23 (2009). “The question is not whether a federal court

believes the state court’s determination under the Strickland standard was incorrect but

whether that determination was unreasonable – a substantially higher threshold.” Id. at

123 (internal quotation omitted). 

First, in response to a prosecution question, the investigating officer testified that

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he offered Petitioner a polygraph and Petitioner agreed to take one. The trial court

sustained defense counsel’s timely objection. Petitioner argues that, in addition to

objecting, defense counsel should have requested a curative instruction. The Michigan

Court of Appeals held that Petitioner failed to rebut the presumption that counsel’s failure

to object was a matter of trial strategy, reasoning that counsel likely did not wish to

emphasize that Petitioner may have taken a polygraph and invite the jury to speculate

about the results. 

The Michigan Court of Appeals similarly concluded that defense counsel’s

handling of inconsistencies between Emily’s and her mother’s testimony was a matter of

reasonable trial strategy. Emily testified that, prior to the incident prompting Petitioner’s

arrest, she told her mother Petitioner had inappropriately touched her during visits to her

mother’s office. She testified that her mother did not believe her. Emily’s mother

testified that, prior to the incident up north, she had no reason to believe Petitioner was

behaving inappropriately. While there does seem to be some inconsistency between

Emily’s and her mother’s testimony on this point, the testimony of both witnesses was,

nevertheless, incriminating. It would have been reasonable for defense counsel to

conclude that focusing on an inconsistency that did not bear upon the heart of the case

against Petitioner would have distracted and alienated the jury.

The Michigan Court of Appeals held that counsel was not ineffective in failing to

subpoena the emergency room physician. The registered nurse who testified about the

physical examinations of the victims testified there was no physical evidence of trauma to

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the victims. Her testimony did not incriminate Petitioner and it was not unreasonable for

the defense to conclude that her testimony about the absence of incriminating physical

evidence was favorable to the defense and that it would be needless to probe further on

this subject. 

The Michigan Court of Appeals’ opinion, although not citing Strickland, applied

the test established therein to deny the foregoing ineffective assistance of counsel claims. 

Petitioner has not shown the Michigan Court of Appeals’ application of Strickland to be

unreasonable. 

In his final ineffective assistance of counsel claim, Petitioner argues that his

attorney should have more thoroughly investigated the Liuzzos’ alleged motivation to

frame Petitioner by investigating and making an offer of proof regarding alleged thefts

from Petitioner’s business. This claim was raised for the first time in Petitioner’s motion

for relief from judgment. The trial court provided no reasons for its denial of this claim. 

Thus, as discussed above, this Court “must ask whether it is possible fair-minded jurists

could disagree that those arguments or theories are consistent with” clearly established

Supreme Court precedent. Harrington, 131 S. Ct. at 785. 

The Michigan Court of Appeals, on direct review, held that evidence of the

Liuzzos’ alleged wrong-doing was irrelevant to the trial. The evidence and affidavits

presented by Petitioner in support of this claim fail to show any connection between the

alleged theft and the allegations of sexual abuse. This Court agrees with the state court’s

holding that this testimony was irrelevant to the charges of criminal sexual conduct. 

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Accordingly, it was not ineffective for counsel to fail to offer inadmissible evidence. 

E. Sentencing Claim

Petitioner argues that his sentences were improperly based upon facts not admitted

by him or determined by the jury. In Blakely v. Washington, 543 U.S. 296, (2004), the

Supreme Court held that, other than the fact of a defendant’s prior conviction, any fact

that increases or enhances a penalty for the crime beyond the prescribed statutory

maximum for the offense must be submitted to the jury and proven beyond a reasonable

doubt. Id. at 301, (citing Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). Blakely

involved a trial court’s departure from Washington State’s determinate sentencing

structure. In contrast, Michigan has an indeterminate sentencing system for most crimes,

including those for which Petitioner is imprisoned. The maximum term of imprisonment

is set by law. People v. Drohan, 475 Mich. 140, 160-61 (2006). Indeterminate

sentencing schemes do not violate the Sixth Amendment by invading the province of the

jury, so long as the defendant is sentenced within the statutory maximum. Blakely, 542

U.S. at 304–05, 308–09. 

In this case, the sentencing court did not exceed the statutory maximum for

Petitioner’s crimes. Therefore, the sentencing scheme did not run afoul of the Sixth

Amendment. Because Blakely does not apply to indeterminate sentencing schemes like

the one utilized in Michigan, the trial court’s sentence did not violate the petitioner’s

constitutional rights. Montes v. Trombley, 599 F.3d 490, 497 (6th Cir. 2010); see also

Chontos v. Berghuis, 585 F.3d 1000, 1002 (6th Cir. 2009).

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F. Alleged Prosecutorial Misconduct

Petitioner next argues that the prosecutor improperly vouched for the credibility of

prosecution witness Jessica M. when he argued in closing statement: “Jessica has no

reason not to tell the truth in this case,” and “Jessica did not make this up.” 

It is well-established that prosecutors must “‘refrain from improper methods

calculated to produce a wrongful conviction.’” United States v. Young, 470 U.S. 1, 7

(1985) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). However, “[c]laims 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 may warrant habeas corpus relief only if the

misconduct “‘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)). “To constitute a denial of due

process, the misconduct must be ‘so pronounced and persistent that it permeates the entire

atmosphere of the trial.’” Byrd v. Collins, 209 F.3d 486, 529-30 (6th Cir. 2000) (quoting

Pritchett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997)). The Court must examine “<the

fairness of the trial, not the culpability of the prosecutor.’” Pritchett, 117 F.3d at 964

(quoting Serra v. Mich. Dep’t of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993)). 

“‘Improper vouching occurs when a prosecutor supports the credibility of a

witness by indicating a personal belief in the witness’s credibility thereby placing the

prestige of the [prosecutor’s office] behind that witness.’” U.S. v. Trujillo, 376 F.3d 593,

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607 (6th Cir. 2004), quoting U.S. v. Martinez, 253 F.3d 251, 253-54 (6th Cir. 2001). The

prosecutor argued that the totality of the evidence presented supported the prosecution’s

version of the events and that Jessica had no motive to lie. The prosecutor did not place

the prestige of his office behind Jessica M. Instead, he simply invited the jury to consider

the victim’s motives for testifying. This does not amount to improper vouching. 

G. Sufficiency of the Evidence

Next, Petitioner argues that insufficient evidence was presented to support his

conviction for second-degree criminal sexual conduct with victim Kayla K. 

“[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). On direct review, review

of a sufficiency of the evidence challenge must focus on whether “after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v.

Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In the habeas context, “[t]he

Jackson standard must be applied ‘with explicit reference to the substantive elements of

the criminal offense as defined by state law.’” Brown v. Palmer, 441 F.3d 347, 351 (6th

Cir. 2006) (quoting Jackson, 443 U.S. at 324 n.16). 

“Two layers of deference apply to habeas claims challenging evidentiary

sufficiency.” McGuire v. Ohio, 619 F.3d 623, 631 (6th Cir. 2010) (citing Brown v.

Konteh, 567 F.3d 191, 204-05 (6th Cir. 2009)). First, the Court “must determine whether,

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viewing the trial testimony and exhibits 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.” Brown, 567 F.3d at 205, (citing Jackson, 443 U.S. at 319). Second, if

the Court were “to conclude that a rational trier of fact could not have found a petitioner

guilty beyond a reasonable doubt, on habeas review, [the Court] must still defer to the

state appellate court’s sufficiency determination as long as it is not unreasonable.” Id.

Under Michigan law, the elements of second-degree criminal sexual conduct, as

relevant to this case, are (1) sexual contact (2) with a person under thirteen years of age. 

See Mich. Comp. Laws § 750.520c(1) (a). “‘Sexual contact’ includes the intentional

touching of the victim’s or actor’s intimate parts or the intentional touching of the

clothing covering the immediate area of the victim’s or actor’s intimate parts, if that

intentional touching can reasonably be construed as being for the purpose of sexual

arousal or gratification, done for a sexual purpose, or in a sexual manner . . .” Mich.

Comp. Laws § 750.520a(q). The phrase “intimate parts” “includes the primary genital

area, groin, inner thigh, buttock, or breast of a human being.” Mich. Comp. Laws §

750.520a(e). 

Because the trial court denied the claim, but provided no explanation for its

decision, the Court must determine what theories or arguments supported or could have

supported the decision. Harrington, 131 S. Ct. at 785. Jacob, Kayla’s brother, testified,

one night when they slept at Petitioner’s home, he saw Petitioner come into the room

where he and his sister were sleeping and touch his sister. On direct examination, Jacob

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testified that he saw Petitioner stick his hand down Kayla’s pants. On cross-examination,

he testified that Kayla was under the bedcovers, so he did not actually see Petitioner put

his hand down Kayla’s pants. He only saw Petitioner put his hand under the covers. 

Kayla testified, but was unable to remember any of the events. 

“A reviewing court does not reweigh the evidence or redetermine the credibility of

the witnesses whose demeanor has been observed by the trial court.” Matthews v.

Abramajtys, 319 F.3d 780, 788 (6th Cir. 2003), (citing Marshall v. Lonberger, 459 U.S.

422, 434 (1983)). “A reviewing court ‘faced with a record of historical facts that supports

conflicting inferences must presume – even if it does not affirmatively appear in the

record – that the trier of fact resolved any such conflicts in favor of the prosecution, and

must defer to that resolution.’” McDaniel v. Brown, __ U.S. __, 130 S. Ct. 665, 674

(2010), (quoting Jackson, 443 U.S. at 326). 

Jacob’s testimony, if believed, coupled with Petitioner’s overall behavior, while

not overwhelming, is sufficient to establish satisfy each of the required elements. Thus,

the state Court’s conclusion was not contrary to or an unreasonable application of

Jackson. 

H. Extrinsic Influences on Jury

Next, Petitioner argues that jurors were exposed to extrinsic influences when they

witnessed the prosecutor berating defendant at a restaurant during a lunch recess and

when they saw Petitioner wearing manacles. 

“As a matter of law, clearly established Supreme Court precedent requires that a

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criminal defendant be afforded the right to confront the evidence and the witnesses

against him, and the right to a jury that considers only the evidence presented at trial.” 

Doan v. Brigano, 237 F.3d 722, 733 n.7 (6th Cir. 2001) (citations omitted), overruled on

other grounds by Wiggins v. Smith, 539 U.S. 510 (2003). “Thus, under clearly

established federal law, jury exposure to extrinsic evidence or other extraneous influence

violates a defendant’s Sixth Amendment rights, . . . and a state court decision that

conflicts with this rule may justify habeas relief under the standard set forth in the

AEDPA.” Fletcher v. McKee, No. 08-1240, 2009 WL 4755293, *3 (6th Cir. Dec. 11,

2009). 

An extraneous influence on a juror is “‘one derived from specific knowledge about

or a relationship with either the parties or their witnesses.’” Garcia v. Andrews, 488 F.3d

370, 376 (6th Cir. 2007) (quoting United States v. Herndon, 156 F.3d 629, 635 (6th Cir.

1998)). Examples of extraneous influence include “‘prior business dealings with the

defendant, applying to work for the local district attorney, conducting an out of court

experiment, and discussing the trial with an employee.’” Id. (quoting United States v.

Owens, 426 F.3d 800, 805 (6th Cir. 2005)). Examples of “internal” influences include

“the behavior of jurors during deliberations, the jurors’ ability to hear and comprehend

trial testimony, and the physical and mental incompetence of a juror.” Williams v.

Bagley, 380 F.3d 932, 945 n.7 (6th Cir. 2004). 

Petitioner claims two instances of extrinsic influence on jurors which are

summarized in his affidavit as follows:

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5. During my trial there was a lunch break and I went to lunch in town at a

restaurant where the prosecutor and several jurors from my trial were also

present.

6. In a voice loud enough to be heard by the jurors, the prosecutor

announced that I was not allowed to remain at liberty and that I needed to

be locked up.

7. The jury later saw me in handcuffs being led towards the courtroom.

Petitioner’s Affidavit, 7/31/2007, at 2. 

Other than his own affidavit, Petitioner provides no support for his characterization

of the alleged encounter with the prosecutor at the diner. The trial transcript evidences no

objections or discussion regarding any questionable behavior by the prosecutor at the

diner or the jury viewing Petitioner in handcuffs outside the courtroom. Petitioner’s selfserving affidavit, absent any other evidence, is simply inadequate to show that the jury

was exposed to any external influences. Moreover, assuming that the jury viewed

Petitioner in handcuffs in the hallway, Petitioner has not shown that this incidental

viewing of a routine security measure resulted in any prejudice. 

I. Alleged Ineffective Assistance of Appellate Counsel

Finally, Petitioner alleges ineffective assistance of appellate counsel as cause to

excuse his procedural default. As discussed above, the Court determined that Petitioner’s

claims were not defaulted. Nevertheless, the Court will briefly address Petitioner’s

ineffective assistance of appellate counsel claim. 

Petitioner claims that appellate counsel was ineffective in failing to raise on direct

review the claims Petitioner raised on collateral review and in his habeas petition. 

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Petitioner has failed to show that any of these claims were potentially meritorious. 

Therefore, Petitioner cannot show that his appellate attorney was ineffective for failing to

raise them on direct appeal. 

V. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of

the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. §2253(c)(2). A petitioner must show “that

reasonable jurists could debate whether (or, for that matter, agree that) the petition should

have been resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation omitted). In this case, the Court concludes that reasonable jurists would not

debate the conclusion that the petition fails to state a claim upon which habeas corpus

relief should be granted. Therefore, the Court will deny a certificate of appealability.

VI. Conclusion

Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is

DENIED and the matter is DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

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s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

DATE: June 12, 2012

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was

served upon the Petitioner via ordinary U.S. Mail and Counsel for the Respondent,

electronically.

s/Bernadette M. Thebolt

Case Manager

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